IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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j  22 

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7 


Photographic 

Sciences 

Corporation 


J  WEST  MAIN  STREET 

WEBSTER,  NY.  14S80 

(716)  872-4503 


f/j 


:\ 


O 


\ 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICIVIH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


Technical  and  Bibliographic  IMotes/Notes  techniques  et  bibliographiques 


The  Institute  has  attempted  to  obtain  the  best 
original  copy  available  for  filming.  Features  of  this 
copy  which  may  be  bibliographically  unique, 
which  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checked  below. 


L'Institut  a  microfilmd  le  meilleur  exemplaire 
qu'il  lui  a  6t6  possible  de  se  procurer.  Lns  details 
de  cet  exemplatre  qui  sont  peut-dtre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  mdthode  normale  de  filmage 
sont  indiquds  ci-dessous. 


D 
D 

n 
n 
n 


Coloured  covers/ 
Couverture  de  couleur 

Covers  damaged/ 
Couverture  endommagee 

Covers  restored  and/or  laminated/ 
Couverture  restaur6e  et/ou  pellicul^e 

Cover  title  missing/ 

Le  titre  de  couverture  manque 

Coloured  maps/ 

Cartes  g^ographiques  en  couleur 

Coloured  ink  (i.e.  other  than  blue  or  black)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 

Coloured  plates  and/or  illustrations/ 
Planches  et/ou  illustrations  en  couleur 

Bound  wiih  other  .Tiaterial/ 
Reli^  avec  d'autres  documents 


□    Coloured  pages/ 
Pages  de  couleur 

n    Pages  damaged/ 
Pages  endommag^es 

I      I    Pages  restored  and/or  laminated/ 


n 


/ 


Pages  restaurdes  et/ou  pellicul^es 

Pages  discoloured,  stained  or  foxed/ 
Pages  ddcolor^es,  tachetdes  ou  piqu6es 


Pages  detached/ 
Pages  d^tach^es 

Showthrough/ 
Transparence 

Quality  of  print  varies/ 
Quality  inegale  de  I'impression 

Includes  supplementary  material/ 
Comprend  du  materiel  supplementaire 


□ 


n 


Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin/ 

La  reiiure  senee  peut  causer  de  I'ombre  ou  de  la 
distortion  le  long  de  la  marge  intdrieure 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certaines  pages  blanches  ajout6es 
lors  d'une  restauration  apparaissent  dans  le  texte, 
mais,  lorsque  cela  6tait  possible,  ces  pages  n'ont 
pas  6t6  film^es. 


n 


Only  edition  available/ 
Seule  Edition  disponible 

Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obscurcies  par  un  feuillet  d'errata,  une  pelure, 
etc.,  ont  6t^  film^es  i  nouveau  de  facon  it 
obtenir  la  meilleure  image  possible. 


D 


Additional  comments:/ 
Commentaires  suppl^mentaires: 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  filmd  au  taux  de  reduction  indiqu6  ci-dessous. 

IPX 14X 18X £X 

I  \  n  I  \  \  I  I  \  I  I  / 


26X 


30X 


12X 


lex 


20X 


24X 


28X 


32X 


tails 
I  du 
odifier 
une 
mage 


The  copy  filmed  here  hes  been  reproduced  thanks 
to  the  generosity  of: 

Douglas  Library 
Queen's  University 

The  images  appearing  here  are  the  best  quality 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  keeping  with  the 
filming  contract  specifications. 


L'exemplaire  film*  fut  reproduit  grAce  k  la 
gAnArosit*  de: 

Douglas  Library 
Queen's  University 

Les  images  suivantes  ont  AtA  reproduites  avec  le 
plus  grand  soin,  compte  tenu  de  la  condition  at 
de  In  nettet*  de  l'exemplaire  film*,  et  en 
conformity  avec  les  conditions  du  contrat  de 
filmage. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


Les  exemplaires  originaux  dont  la  couverture  en 
papier  est  imprimis  sont  filmis  en  commen^ant 
par  le  premier  plat  et  en  terminant  soit  par  la 
derniire  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration,  soit  par  le  second 
plat,  salon  le  cas.  Tous  les  autres  exemplaires 
originaux  sont  filmte  en  commengant  par  la 
premiere  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  et  en  terminant  par 
la  derniAre  page  qui  comporte  une  telle 
empreinte. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  -^  (meaning  "CON- 
TINUED "),  or  the  symbol  V  (meaning  "END"), 
whichever  apolies. 


Un  des  symboles  suivants  apparaTtra  sur  la 
derniire  image  de  cheque  microfiche,  selon  le 
CBs:  le  symbols  ^^>  signifie  "A  SUIVRE",  le 
symbole  V  signifie  "FIN". 


Maps,  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  In  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  es  meny  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Les  cartes,  planches,  tabieeux,  etc.,  peuvent  dtre 
film6s  d  des  taux  de  reduction  diffirents. 
Lorsque  le  document  est  trop  grand  pour  dtre 
reproduit  en  un  seul  clichA,  il  est  film*  A  partir 
de  I'angle  supArieur  gauche,  de  gauche  A  droite, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  nicessaire.  Les  diagrammes  suivants 
illustrent  la  m6thode. 


irrata 
to 


pelure, 
in  d 


n 


32X 


1 

2 

3 

1 

2 

3 

4 

5 

6 

T 


i)f; 


O-a-A-v^Q-     S-a-**-   "bu>v-i-«.vw^JL     ^    o-iI-Jti^Ot-w-tf, 


r 


FI:R    iSKAT.    ARniTRATION. 


PROCEEDINGS 


OF  THE 


TriP)'lJnal  of  Arbitration, 


CONVKNEI)    A  I"    I'AKIS 


UNPKR   TIIK 


TRK ATV  H1:T\VI:i:\  TIIK  UMTKI)  STATI'S  ok  AMRUICA  AXn  CREAT 
HUIiAIN,  t()\tl-LI»i;i>  AT  WASIIINCTOX  l-KhULAKV -'9,  189^, 


FOR  THE 


DKIMRMINAIIOX  OF  QUi'.STIONS  P.i;  TWKKM  THK  TWO  (lOV- 

KRNMIAIS  CONCKRNING  'I'lfK  J  I  klSDICTION  AL 

RlGIllS  Ul-    Till-:   LfNITEL)  STAl'ES 


IN    TIIK 


\vatI':rs  ()1<  p.I'Kixg  sila. 


VC)I.i:mi:    I. 


\\\\SmN(lTOX: 

GOVKUNMKNT    I'lMNTINtr    oTI'ICE. 
1895. 


FUR  SEAL  ARBITRATION. 


FINAL  KFPOirr  OF  THF,  AGRNT  OF  TIIF  UNITKI)  STATKS;  PROTOCOLS 

OF  TIIK  I'KOCKKIHMiS  OF  TIIF  TIMBllNAL;    AWAKD  AND 

DFCLAIIATION;    oriMON'S   OF   MK.  JUSTICE 

HAULAN  AM)  SKNATOR  .MOKdAN. 


31771 


FINAL  RKPOKT  OF  TIIK  AiiKNT  OF  Till']  UNFIKh  STATKS. 


A(iI'.N<'N    n|.     Till;    rM'ir.D    Sl'\'|i:S. 

I'ld-iSf  Aiifjtifil  Jh,  />''.;. 
IlniinriiMo  W,  (}.  (iKr.SIIAM. 

Si'rtvtitifl  it/  Sti(t<;   WtisliiiitiliHi.  />.  (J. 

SlU:  As  ii;;t'iit  (»r  llic  IliiiU'il  Stiilrs.  iippoiiifcil  tinder  flic  treaty  of 
Feliniiin  L*l».  IS  ti.',  piovitliiij;  loi'  llie  siilmiissinii  to  iiiltitr.itioii  of  the 
*|iie.sti<)iis  wliicli  liad  arisen  between  tlie  I'nited  States  and  (Ireat 
ISi'itaiii  respecting  the  fur  seals  of  tlie  i'riitilof  Islands,  I  now  have  the 
honor  to  tiiinsiiiit  to  you  the  follow  iiii;'  rc|>oit  of  the  proceed  in  jl;'s  and 
resnlts  of  the  aii>itiation  : 

When  I  i'litcrcd  upon  my  duties  as  af^«'nt,  in  May,  iS'Jii,  it  was  found 
that  no  steps  had  up  to  \  't  time  been  taken  to  collect  eviiU-nce  in 
authentic  form  t(»  sup|>ort  the  claims  put  forward  by  the  Unitt'd  States, 
ami  which  were,  by  tiie  treaty  of  i-'ebruary  l'!t,  l.s:»2,  to  be  submitted  to 
the  Tribunal  of  Arbitration.  I  (!oncei\ cd  it  t<»  l»e  my  duty  under  tli(^ 
treaty,  in  the  preparation  of  the  case  of  the  United  States,  to  embrace 
in  that  document  a  presentation  of  all  tlu^  (piestions  of  law  and  of  fact 
which  were  !  v  the  treaty  submitted  to  arbitration,  and  to  sujtport  the. 
claims  of  tht  United  States  in  respect  thereto  by  all  the  evidence  in 
the  possession  or  within  the  reach  of  the  (lovernment.  1  therefore 
ju'oeeeded  with  as  much  i)romi)tness  and  tliorouuiiness  as  the  time  and 
means  at  my  command  allowed  to  collect  all  the  evidence  which  was 
l»ertinent  an«l  proi>er  to  lay  before  the  Tribunal  of  Arbitration,  tendinj; 
to  establish  the  |iosition  assumed  by  the  ITnitcd  States  respectiii};'  the 
live  points  set  forth  in  Article  \'I  of  the  treaty  and  eiubraciii<;'  tlu^ 
facts  necessary  to  a  determination  of  the  regulations  referred  to  in 
Article  VII. 

The  printed  ease  of  the  United  States,  aecompanied  by  the  docu- 
ments, oilicial  correspondence,  and  other  evideiuui  relied  upon  in  sup- 
port thereof,  was  delivered  to  the  agent  of  (ireat  IJritain  an<l  to  the 
arbitrators  between  the  1st  and  <»th  of  September,  1S!(2,  or  within  the 
time  fixed  by  the  treaty;  and  the  printed  case  of  (Ireat  Uritain  was 
in  like  maniu'r  delivered  to  nie  by  the  agent  of  that  (rovernnu'iit. 

When  the  i)rinted  ease  of  (Ireat  P»ritain  was  examined  it  was  found 
to  contain  no  c  .nlcnce  whatever  touching  the  nature  and  habits  of  the 
seals,  the  consideration  of  whi(di  was  necessary  to  the  determination 
of  the  main  questions  subiaitted  to  the  Tribunal,  which  were  embraced 


6 


FINAL  KKPOUT  OF  TIIK  AiiKNT  <)F  TIIK  INITKI)  STATES. 


in  tho  llltli  point  of  Artiric  VI,  conccriiiii;;  Mm'  ri;:lit  of  pi(>t««'tion  or 
lirnpnly  asscilrd  l»y  tlic  I'liilrd  Stiitrs  in  tin-  cnls  inlnihitiii^  tlu^ 
I'riliiloi'  isIiUKls,  itnil  in  Article  Nil,  concern  in{;«'onciin-<-nt  re;;)  i  hit  ions. 

Uy  direction  of  the  President,  the  Secretary  of  Sl;it<'  addreHs«'d  a 
not(!  to  th<'  ISritisli  representative  in  \Vasliin;:ton,  nnder  (hitc  of  Sep- 
tendier  'J7,  IS<rj,  protesting;  a^^ainst  this  omission  in  the  printed  ease  uf 
(ireat  llrilain,  as  a  faihire  to  comply  witli  tiie  ret|nirement  of  tlie 
treaty.  Attention  was  caUed  to  the  fact  that  it  was  manifestly  con- 
templated by  tiiat  «^)>nipact  that  both  ]•  irties  slnadd  simidti-.neousjy 
snbmit  to  the  arbitrators  ami  to  eacii  other  their  propositions,  their 
claims,  and  their  evidence  iipuii  all  points  in  dispute;  that  it  was  well 
known  to  tiie  Hritisli  (iovernment  that  the  dei'ision  of  the  tw(»  (pu's- 
tions  above  inferred  to  nnist  depend  upon  the  evidence  produced 
eoiieerniii^  the  nature  and  iial)its  of  thu  fur  seal,  and  the  methods  of 
rapture  and  killin;;,  whii'h  are  consistent  with  the  ))reservation  of  the 
species;  that  only  one  opportunity  was  afforded  each  party  t<»  siibmit 
evidence  upon  these  important  (|nestions,  and  that  was  to  be  availed 
of  in  the  orij^inal  case,  exci'pt  so  far  as  ('vidence  in  rebuttal  nii;;ht  be 
lejfilimati'  in  tln^  counter  case;  that  to  reserve  the  evidence  whiidi 
(Ireat  IJiitain  mi^ht  choose  to  submit  on  thes<'  matters  to  the  <'ounter 
ease  would  be  to  alVord  to  the  United  States  ii«>  op|)ortuinty  whatever 
to  nu'ct  it  by  any  rebuttiufi,  explanatory,  or  impcachin};-  testimony; 
ami  that  the  United  States  could  not  assent  to  results  ho  jjrossly 
unjust  and  prejudicial,  and  so  contrary  to  the  s])irit  and  terms  of  the 
treaty.  The  Secretary  of  State  expressed  the  earnest  desire  of  the 
President  that  the  arbitration  shouhl  proci'cd,  but  only  accorditi}«;  to 
the  treaty,  tlu^  object  of  which  was  to  i)rovide  a  fair  trial;  ami  that  he 
entertained  the  ;;reatest  conlidence  that  the  IJritish  (lovernment  would 
eorri'ct  the  errors  which  had  been  made  by  its  representatives  in 
charge  of  its  case 

To  this  representation  the  Secretary  for  Foreijjn  Aflairs  of  Great 
Britain  respoiided  tliat  the  lifth  jtoint  of  Article  VI,  respeetinf"-  the 
rijiht  of  protection  and  of  property  in  the  seals,  in  the  opinion  of  Her 
l?ritannic  ^Majesty's  (iovernmeiit,  depended  ujion  (|uestions  of  law,  and 
not  upon  the  habits  of  seals  and  the  incitlents  of  seal  life;  that  the 
(concurrent  rejiulations  referred  to  in  Article  ^'II  were  not  to  be  taken 
up  for  (consideration  by  the  Tribunal,  except  in  the  (contingency  of  a 
decision  upon  the  live  points  in  Article  VI  unfavorable  to  the  claim  of 
the  United  States,  and  so  that  the  sul)Ject  would  be  left  in  such  a 
]>osifion  that  the  (concurrence  of  < Ireat  Britain  should  be  necessary 
for  the  establishment  of  i)roi»er  re<;iilations;  ajid  that  it  would  have 
been  inconsistent,  illoj>ical,  and  improper  to  have  introduced  into  the 
British  case  mattei-  which,  in  the  opinion  of  his  (lOVcMiiment.  (conld  only  , 
b(c  le<;itimately  used  when  the  (pu'stiou  of  cou(current  re};ulations  was 
under  consideration.  Hut  the  (lovernment  of  the  United  States  having 
expressed  a  dillerent  view,  Her  Majesty's  Government,  the  Secretary 


FINAL  UKI'OUT  OF  TIIK  AfiKNT  OF  TIIF-  UMTKI)  STATF.S.  7 

for  I'mvi;,'!!  AlViiirs  stiitnl.  Im-jiij,' di'siroUH  to  fiurilitatr  tin-  i>ro;:n'SS  of 
tlicjirhitiiitioii,  would  fmiiisli  at  oiicn  fit  llu'(lov<'rniiuMit  of  tin'  riiit«Ml 
Statj's  ;ni(l  to  tilt' ailHtiiitois  tlh^  n-port  of  the  Hriti-sli  (^ommissioiiois 
apiioinfril  \i\u\vr  Arliclr  IX  of  tin-  treaty,  wiiirli  iiii;;lit  he  tn'atnl  as  a 
part  of  tin' ease  of  (licat  IJritaiii. 

Tin'  Sj'cirtar.v  of  State,  in  n'ply  to  tln'  llritisli  .Scnotary  t'»>r  Koi('iy;n 
AfVaiiH.  coiirnin'd  with  liiiii  in  the  view  that  tlui  liflli  point  of  Article 
VI,  rcHpectiii};  the  riy:ht  of  protei'tion  or  property  in  the  seals,  was  a 
(|iiesiion  of  law;  l>ut  he  insisted  that  the  precise  <pn'sti(tns  of  law  eonhl 
n(»t  be  known  and  ni>t  tlu'refore  determined  until  the  facts  out  of  whi«*h 
they  arose  were  known,  ami  that  the  facts  c(»ncernin;;  the  natun^  and 
nabits  of  till'  seals  were  in  the  hij-hest  deforce  iiniK)rtiint  for  a  proper 
ileternumition  of  the  <iucstion  end)rac«'d  in  the  »ilth  point,  lie  dis- 
sented from  the  opinion  expresse<l  that  the  suhndssion  of  evidence  was 
depen<l(-nt  as  to  time  upon  any  conlin;;(Micy;  hut  iui  at'cepted  the  oiler 
to  deliver  the  iep(ut  of  the  IJritish  ('ommissi<»ners  as  a  part  of  the  case 
of  (ireat  ISritain.  assuming;  that  it  contained  substantially  all  the  matter 
upon  which  that  ilovernmeiit  would  rely  to  supjiort  its  contentions  in 
respect  to  the  nature  and  lial>itsof  the  fur  seals,  and  reserviiifjthe  ri;>ht 
to  lu'otest  aj^ainst  an<l  ojiposcr  the  sultmission  to  the  arbitrators  of  any 
matter  which  mifiht  be  inserted  in  the  IJritish  c(nintei' <'as»'  m>t  relevant, 
by  way  of  reply,  to  tin;  <*ase  (»f  the  Tnited  States. 

On  tlu'.ioth  <d"  Scptend)er.  lS!»li,  I  received  notice  fnun  the  a;;ent  of 
(Ireat  IJritain  that,  in  accordance  with  the  ju'ovisions  of  Article  \V  of 
the  Treaty  ol"  Arbitration,  the  (Jovernment  of  (Ireat  IWitain  would 
re(pnre  an  additional  peiiod  of  sixty  <lays  within  which  to  deliver  its 
counter  case. 

Outhe  ir)th  of  November,  \S'.)'2,  the  liritish  minister  in  Washington 
delivered  tomei»rinted  coi)ies  of  the  report  of  the  British  Commission- 
ers a.s  tendereil  to  the  Secretary  i'ov  Foreign  A  Hairs.  This  report  was 
found  to  contain  a  statement  and  discuissiou  of  the  nature  and  habits 
of  the  fur  seals,  of  the  jnesent  condition  of  the  I'ribilof  seal  herd,  and 
of  the  uiethiMls  and  ctlects  of  the  killiii};  of  seals  both  in  the  water  and 
on  the  land.  Tlu;  leport  was  also  accompanied  by  various  appendices 
on  these  subjects. 

In  a('cordam;e  witii  the  provisions  of  the  treaty,  the  jtrinted  coiinter 
case  of  the  United  States,  with  accompanyiiiff  documents,  correspond- 
ence, and  (ni<lei!ce,  was  delivi'red  on  tlu^  .">d  of  February,  1.SU3,  to 
the  British  ajjent  and  to  the  arbitrators.  This  (rounter  case  had  been 
prepared  in  accorilance  with  the  teims  of  the  treaty,  and  was  in  strict 
reply  to  the  printed  case  of  the  British  (jovernment. 

The  counti'r  case  of  (iieat  Britain  was  delivered  to  me  within  the 
time  required  by  the  treaty:  but  when  examined  it  was  found  to  con- 
tain a  larjje  body  of  evidence  which  could  in  no  proper  sense  bo 
refjfarded  as  in  leply  to  the  case  of  the  Initeil  States,  and  which, 
uudui'  tlio  terms  of  tUo  treaty,  should  have  been  presented  iu  the 


8 


I'INAI,  UKI'OKT  oP  TIIK  A(JKNT  OK  Till',  I'NIlKl)  STATKM 


oi-i);iiiiil  riis«>  of  (ii'cat  Itiitaiii.  lis  siilttiiissioii  :it  tlic  tinic  aiui  in  tlio 
t'oriii  ihloptiMi  liy  tli(>  llrilisli  (iovt'riiiiM'iit  (I(>|)ri\'(>i|  tlio  I'liitnl  Ktatrs 
of  any  opportunity  to  nit'ct  it  i>y  nicans  of  r<>l)ntlin^,  (^xplainttory,  or 
ini|U'a<'liin^'  tcstiinony. 

Jint  wiiih'  it  was  icyanlcd  by  tin-  I'rt'Hiilciit  and  by  the  (counsel  of 
tilt;  llniteil  Statrs  as  a  wliolly  nnjustilialilc  procccrlinji;  on  tho  part  of 
Oi-cat  Hritain,  it  was  ilcmit'd  Iti'st  to  allow  tlir  arbitration  to  piocot'd, 
and  at  tin  propur  tiuiu  t«»  btin;;  tlic  sultjtHt  to  tlie  attention  uf  the 
Tribunal. 

Tin;  liist  session  of  tne  Tribunal  of  Arbitration  was  held  in  Pari^,  in 
acj'ordanci!  with  the  terms  of  tlu'  tn'aty,  on  February  'Si,  1S"J;{,  but, by 
a^M-ecnuMit  of  the  two  (iovcrninents,  it  was  of  an  iiifornnil  character 
and  am  adiourninent  for  one  inontli  was  had  without  the  transaction  of 
uny  business.  On  reasseniblin^;  in  Paris,  March  L'.'t.  1H!K{,  the  ])rinted 
arf^urnent  of  «'ach  of  tlu'  parties  was  laid  ln'fore  the  Tribunal.  A  recess 
was  then  taken  to  April  •(,  when  the  counsel  fortireat  ISritain  s\ibiuitted 
amotion  that  the  a^ent  of  the  rniteil  States  be  called  upon  to  pioduee 
the  report  of  lleury  W.  Klliott,  made  in  18!>().  t(>  the  Government  of 
the  United  States.  The  report  ol"  .Mr.  Klliott  had  never  been  i)ub- 
lished  by  the  (lovernnient  and  had  not  been  used  nor  alluded  to  in  the 
<!ase  of  tin'  United  States;  but  duiiu},'  the  Joint  conference  of  the  Com- 
missioners of  the  two  (lovernments  in  Washington  in  February,  1.S!I3, 
It  had,  at  the  reipiest  of  the  British  Oonimissioners,  been  laid  before 
them  for  sucli  use  as  they  saw  tit  to  make  of  it. 

The  counsjil  for  tile  I'nited  States  d«Miied  that  the  British  (Jovern- 
meat  was  entith'd  under  the  treaty  to  an  order  of  the  Tribunal  for  the 
]>roduction  of  the  dotiument,  b'lt,  waivinj;  their  rifjht  of  objection  and 
not  conceding  that  either  part;  had  the  rifjfht  to  introiluee  any  further 
eviilence  whatever,  they  otfered  to  lay  a  copy  of  the  rejmrt  in  question 
before  the  Tril)unal,  upon  coM<lition  that  if  it  be  used  in  evidence  it 
sliould  be  ojten  to  the  use  of  both  pai'ties  equally.  The  report  of  Mr. 
Kllioit  was  therefore  jtroduced,  and  it  was  printed  by  the  Britisli  agent. 

During  the  rei^ess  following  the  adjournment  of  March  23  the  agent 
of  Great  Britain  sent  to  each  of  the  arbitrators  and  to  the  agent  of  the 
United  States  printeilcopiesof  a  "Supplementary  licportof  the  British 
CouHuissioners  Aj»pointed  to  Impiire  into  Seal  Lite,  in  Bering  Sea."  At 
the  session  o(  the  Tribunal  on  A|)ril  4  1  presented  a  motion  that  tlii.s 
document  be  dismissed  from  consideration,  on  the  ground  that  it  wan 
submitted  at  a  time  and  in  a  manner  not  allowc<l  by  the  treaty.  This 
motion  was  supported  by  tlie  counsel  for  the  United  States  in  argu- 
ments at  some  length,  in  the  course  of  which  they  animadverted  upon 
the  course  pursued  by  (J reat  Britain  in  withholding  from  its  case  evi- 
deiuie  as  to  facts  material  to  the  determiiuition  of  the  (piestions  sub- 
mitted to  arbitrati(Hi  and  in  inserting  that  evidence  in  its  counter  ease, 
by  which  means  the  United  Stales  was  i)laced  at  u  great  disadvantage. 
While  counsel  would  have  been  justilied  by  the  treaty  and  the  rules  of 


KINAL  RKI'OH'I'  oK   I'Hfc  A(JKNT  OK  tllK  INITKI)  hTA  IFA 


9 


jiidicial  |ti<)<('iliii'4'  in  siskiii;;  tlie  Trilttiiial  to  correct  the  injustice  by  li 
rejection  of  tliis  evidein*!',  »'*»"i>scl  st!ite<i  tliiit  tiie  lJnite<l  Slates  was 
eonteiit  to  nilow  the  arbitration  to  ])rocceil  u|m»ii  tlie  case  and  counter 
case  of  each  party  as  presented,  i>nt  tliat  tlie  wron^'  aheady  coiniuitted 
Hlioiild  not  1>«  a).';;ravated  by  theMntrodiiction  of  I'lirther  testimony  as 
]»ro|H>sed  l»y  means  of  tiio  Hupplementary  report.  After  ar^jnuient  by 
counsel  for  (treat  llritain  tlie  Tribunal  decided  that  the  report  Hhoidd 
n«»t  be  received  as  evidence. 

It  is  not  deemed  necessaiy  to  set  forth  in  detail  the  claims  of  tlie  two 
parties  as  prescribed  in  the  Treaty  of  Arliitiation  or  the  issues  joined 
befor*'  the  Tribunal.  These  are  fully  stat«'d  in  the  case,  i'«»untcr  case, 
and  printed  arfiument  of  cacli  ( M»v<'ninicnt  whicli  acconipany  this 
report.  It  is  sullicient  to  note  that  tiiici' subjects  were  Hidiinitted  to 
the  Tribunal  Ibr  its  consideration  and  decision.  The  tlrst  of  tln'se 
related  to  the  Russian  claim  of  exclusive  jurisdiction  in  iJeriii};  Sea; 
the  second  to  the  riyht  of  th«'  I'liitcd  Stat»'S  '  prot<>ction  or  prop- 
erty in  the  fur  seals  of  the  l'rii)ilof  iHJands,  and  tlx  third  to  the  concur- 
rent rc^rulations  necessary  for  the  pi(»per  prote<uon  and  i>reservation  of 
these  seals. 

The  oral  arjiument  on  these  (|uesti(Mis  ju'ovided  lor  in  Artiide  Vof  the 
treat.,  i.cf^an  on  the  iL'th  of  Ajuil.  I»y  arranv'  iii<  I't  of  <'ounscl,  it  was 
agreed  tiiat  the  United  States  snould  opi'ii  ami  «'lose  the  ar^^iiment, 
Mr.  Carter  and  Mr.  (^'oudcrt  s]»eakiiifr  f()r  ilu'  United  State's,  followed 
by  the  attorney-j^eneral  of  Kn^^land,  Sir  Kicharil  E.  Webster,  and 
Mr.  Kobinson  for  (Jreat  r.ritain,  and  Mr.  I'iiclps  for  the  United  States, 
elosin;;  the  arfjiiment.  The  discussion  exteiKb'd  until  .July  H,  with  a 
recess  of  one  week,  the  Tribunal  holdiny  sessions  of  four  hours  during 
four  days  of  eat'h  week. 

Early  in  the  preparalion  of  the  case  of  the  United  States  the  conclu- 
si(Hi  was  reached  that  it  would  be  tlillicult  to  sustain  the  claims  which 
had  been  put  forward  by  the  Unitj'd  States  in  the  diploniati*;  corre- 
s|)ondence  as  to  the  exclusive  jurisdiction  exer<!ised  by  Russia  over  the 
waters  of  liering  Sea  previous  to  the  cession  of  Alaska.  Counsel  for 
the  United  States  made  (earnest  ellbrts  in  suppiut,  as  far  as  possible, 
of  the  position  assumed  by  our  (luveMiment  in  the  diplomatit;  corre- 
sp(»ndence,  but  the  decision  of  the  Tribunal  on  the  tirst  four  points  of 
Article  VI  was  not  unexpected. 

On  the  hfth  point  of  Article  VI,  as  to  the  right  of  ju-otectiou  or  ])rop- 
erty  in  the  fur  sealsof  the  I'ribilof  Islands,  counsel  for  the  Unit<'d  States 
felt  themselves  upon  soli<l  ground  of  law  and  of  fact.  The  assertion, 
indeed,  of  a  right  of  property  in  seals  which  spent  half  the  year  in 
remote  regions  of  the  seas  was  'Ui!  ""d  a  novel  one,  but  novelty  itself  is 
no  objection  to  a  i»roposition,  and  they  felt  entirely  -ontident  of  their 
ability  to  show  that  according  to  the  universal  laws  which  underlie  the 
institution  of  property  the  fur  seals  must  be  deemed  to  be  the  ])roperty 
of  the  United  States. 


10 


FINAL  UEl'OUT  OF  THF  AOKNT  OF  THK  UNITKD  STAT?:S. 


I  I 


!   ! 


Tlio  case  of  the  United  States  had  csl;tl)Iished  th(^  tbUowiii};  facts: 

That  tlie  fur  seals  wliieh  were  tlie  snbjeet  of  this  arbitration  were 
begotten,  •orn,  and  reared  on  tlie  I'ribihtt  Ishinds,  owned  by  the  Lniited 
States;  that  they  made  these  islands  their  home  and  had,  so  far  as  it  is 
known,  always  tlone  so;  that  tiiey  spent  a  lai';;e  part  of  each  year  on 
these  islands;  that  when  they  left  them  on  their  annnal  mi}>ration  it  was 
with  tiie  lixed  intention  to  rctnrii  to  them,  which  they  did  with  nnvary 
ing-  ref^uhirity,  never  resorting?  to  any  other  land;  that  '. iiey  were 
domestics  in  their  habits  aiul  volnntarily  i)lared  tliemselves  when  on  the 
islands  within  the  control  of  man;  that  the  existen<'e  of  the  race 
dejtemled  npoii  the  care,  indnstry,  and  forI)eiir!inee  |»ra('ticed  by  the 
I'nited  States  toward  them,  and  that  but  for  the  j)rotecti()n  j-iven  them 
by  the  United  States  the  race  would  lie  destroyed;  tliat  the  United 
States  alone  could  take  the  increase  of  the  seal  herd  without  diiuiii- 
ishinjf  the  stock,  sin(^e  it  coui«l  lUiike  the  necessary  discrimination  as 
to  s«'x  antl  aj^e  when  takinj;'  the  seals  on  the  islands  for  commercial 
purposes;  and  that  the  taking  of  the  seals  in  the  sea  was  necessarily 
witlnmt  discrimination  as  to  sex,  was  wastel'ul.  and  would  result  in 
destroyiufi'  the  race. 

Upon  tlu'si^  facts  the:  counsel  for  the  United  States  con teiuled  that, 
as  the  seals  could  in»t  pnssildy  be  jireserved  excejit  by  aecordin}>'  a 
rif^htof  propeity  in  them  to  the  United  States,  the  law  ou}»ht  to  and 
di<l  re('0]niii/e  such  riji'ht  of  proi)erty,  and,  c(tnse(iuently,  the  right  of 
protecti(»n  claimed  by  our  Government.  Their  proi)ositi(Ui  was,  sub- 
stantially, that  wherever  any  uselul  thiny  is  dependent  for  its  existence 
upon  the  care  and  industry  of  man,  the  men  who  «>xercise  such  careaud 
industry  have  a  right  of  property  in  siu'h  thing. 

The  counsel  of  the  United  States  presented  these  views  to  the  Tri- 
bunal at  length,  with  great  ability,  persistency,  and  forco,  and  I  speak 
with  assurance  wiien  1  say  that  at  the  end  of  weeks  of  discussion  on 
lM)th  sides  their  jiosition  was  unshal:en.  So  tar  from  the  British  coun- 
sel refuting  t!ieir  arguments  on  this  branch  of  the  case,  it  nniy  bo  said 
that  they  made  no  elfort  to  refute  the  above  pro[)osition,  and  tacitly,  if 
not  openly,  admitting  that  it  ought  to  l)e  the  law,  insisted  that  it  was 
necessary  to  show  that  the  seals  had  been  distinctly  recogid/ed  as  [>rop- 
erty  before  the  Tribunal  could  hold  them  to  be  such. 

The  adverse  decision  of  the  Tribunal  does  not,  it  nuist  be  confessed, 
seem  tocontirm  this  view,  but  its  action  is  susceptible  of  explanation 
without  any  reflection  upon  the  iujpartiality  of  the  neutral  arbitrators. 
I  am  i)leased  to  state  11  at  they  are  gentlemen  of  ability  and  of  the  high- 
est standing  in  their  respective  countries,  and  1  have  no  doubt  they 
were  inspired  by  a  most  <'onscientious  desiie  to  tlisehargetheir  diflicult 
and  somewhat  comi  lex  duties  upon  a  fair  and  just  basis.  IJut  they 
were  confronted  with  a  cpiestion  novel  in  its  facts  and  with  a  claim  on 
the  part  of  the  United  States  which  to  them  seemed  in  conllict  with 
the  accejited  doctrine  of  the  freedom  of  the  seas.  Further,  it  is  now 
apparent  that  it  was  iiuwise  to  have  coupled  the  question  of  the  right  of 


FINAL  KKPORT  OF  THE  AGENT  OF  THE  UNITED  STATES. 


11 


protection  or  property  with  tlie  mutter  of  concinivnt  resuliitions  neces- 
sary for  tlM^  preservation  of  the  seals.  The  decision  and  tlie  i»rotocol.s 
lead  to  the  conclusion  that  the  neutral  arbitratoivs  looked  to  the  repi- 
lations  as  the  best  method  of  adjusting  the  differences  which  had  arisen 
between  the  two  litigant  nations,  and  that  the  arjiuments  of  counsel  for 
the  United  States  on  the  right  of  protection  and  property  did  not,  as  a 
consequence, have  the  weight  which  the  arbitrators  wouhl  iiaveattachetl 
to  them  if  that  had  been  the  <nily  question  referred  for  decision.  It  is 
to  be  inferred  that  they  conceived  it  just  and  jtracticable  to  decide  the 
filth  point  against  the  United  States,  and  yet  attain  the  main  object  of 
the  treaty,  the  preservation  of  the  seals,  by  the  adoption  of  stringent 
regulations  as  to  ]>elagic  sealing. 

Their  mistake  was  not  apparent  until  they  had  decided  the  fifth  point 
and  came  to  consider  the  subject  of  regulations.  Having  reached  a 
conclusion  in  favor  of  the  right  of  pelagic  sealing,  it  becan»e  necessary, 
in  their  well-meant  efibrt  to  reach  a  compromise  betw«»en  the  conflicting 
interests,  to  frame  such  regulations  as  would,  on  the  one  hand,  allow 
pelagic  sealing  to  be  carrie<i  on  with  profit,  and,  on  the  other  hand,  not 
seriously  inq)air  the  seal  herd.  This  insoluble  i)roblein  doubtless 
o(!casionod  them  long  and  anxious  deliberations  and  greatly  delayetl 
the  final  decision.  The  ])rotocol8  show  that  the  Tribunal  was  brought 
face  to  face  with  this  ])roblem.  When  Mr.  Justice  Harlan  submitted  a 
resolution  to  the  effect  that  the  ])ur|)ose  of  Article  VII  of  the  treaty 
was  1o  secure  the  proper  protection  and  i)reservation  of  the  seals,  and 
that  in  the  fnuning  of  regulations  no  extent  of  pelagic  sealing  should 
be  allowed  which  would  seriously  endanger  the  accomplishment  of  that 
end,  he  and  Senator  Morgan  reconled  the  only  votes  in  its  favor,  the 
other  arbitrators  declining  to  vote  or  giving  reasons  why  they  couhl 
not  assent  to  the  declar.ation. 

The  regulatifuis  as  finally  framed  and  protnulgated  are  the  result  of 
an  honest  and  conscientious  eftbrt  on  the  part  of  the  neutral  arbitrators 
to  do  all  that  they  conceived  possible  and  necessary  for  the  protecjtion 
and  preservation  of  the  seal  herd  consistent  with  their  decision  on  the 
fifth  point.  These  regulations  go  much  further  than  the  provisions 
which  our  Government  has  ])roposed  in  the  past,  but  it  is  to  be  observed 
that  late'-  investigations  have  revealed  i)erils  to  which  the  seals  are 
exposed  Mot  then  known.  It  is  to  be  hoped  that  the  regulations  when 
l)ut  in  operation  will  realize  the  best  expectations  of  the  Tribunal. 
Much  depends  upon  the  manner  in  wliich  they  are  enforced.  It  is  not 
to  be  doubted  that  bofli  Governments,  in  deference  to  the  expressed 
directions  of  the  Tribunal  and  to  their  own  obligations,  will  adopt  all 
necessary  legiNlat ion  and  rules  to  give  them  full  force  and  etlect.  If 
the  recommendation  made  by  the  Tribunal  for  a  c«)mplete  cessation  of 
taking  seals  both  on  land  and  at  sea  for  a  few  years  be  adoptcid,  I  shall 
look  for  satisfactory  results  from  the  operation  of  the  regulations. 

I  triuismit  herewith  the  original  award  of  the  Tribunal  of  Arbitration 
and  the  original  protocols  of  the  sessions  of  the  Tribunal. 


12 


FINAL  REPORt  OP  THK  AGKNT  OF  THE  UNITED  STATE«. 


I  tiiko  pleasure  in  reeojfiiiziii};  tlie  hearty  maiuier  in  whicli  \  have 
been  seconcled  by  tlie  counsel  for  tlie  United  States  and  all  other  per- 
sons associattul  with  nie  in  the  preparation  of  the  case  and  in  my  labors 
before  tlie  Tribunal. 

It  only  remains  for  me  to  make  acknowledgment  of  the  conlial  rece])- 
tion  and  jjreat  hospitality  extended  by  the  French  Goveiiimont  to  the 
Tribi;"al  of  Arbitration  and  to  all  the  re])re8entatives  and  ofticials  of 
the  United  States  connected  with  it.  (Jommodious  and  elegant  .apart- 
ments in  the  Ministry  of  Foreign  AHairs  were  set  apart  for  the  use  of 
tlie  Tribunal,  and  every  provision  freely  aHbrded  for  thedispat<'h  of  its 
business  and  for  the  comfort  of  all  persons  associated  with  it.  Our 
(lovernnu'ut  has,  thereby,  been  plaited  under  a  new  debt  of  gratitude 
for  French  hospitality  and  friendship. 

1  am,  sir,  very  respectfully,  your  obedient  servant, 

.louN  W.  Foster. 


:1 


'.7v 


I 

I 
I 


rPvOTOCOLS  OF  THE  SEVERAL  SES- 
SIONS OF  THE  T1U13UNAL. 


PKOTOCOL  U 

MEETING  OF  FEHBUABY  23,  1803. 

Tlie  Tribunal  assembled  at  Paris,  at  the  French  Ministry  for  Foreign 
Aftairs. 

The  arbitrators  present  were: 

The  Honorable  John  M.  Harlan,  Justice  of  the  Supreme  (^ourt  of  tlie 
United  States,  one  of  the  arbitrators  named  by  the  United  vStates; 

His  Excellency  Baron  Alphonse  de  Courcel,  French  Senator,  .the 
arbitrator  named  by  France; 

The  Right  Honorable  Lord  Hannen,  Lord  of  Api)eal,  one  of  the  arbi- 
trators named  by  Great  Britain; 

Who,  having  assured  themselves  that  their  respective  powers  were 
in  good  and  valid  form, 

Baron  de  Courcel  was  invited  by  his  colleagues  to  take  the  chair  as 
president  for  the  present  meeting. 

There  were  present  at  the  meeting: 

Mr.  William  Williams,  special  agent  and  associate  counsel  for  the 
United  States;  the  Hon.  Charles  H.  Tapper,  as  agent  of  Her  Britannic 
Majesty. 

Messrs.  Williams  and  Tupper  laid  before  the  Tribunal  of  Arbitration 
the  commissions  empowering  them  to  act  before  the  Tribunal. 

There  were  also  present  at  the  meeting  as  counsel  for  Her  Britannic 
Mii.jtisty's  Government: 

Sir  Charles  liussell,  Q.  C,  M.  I'.,  Her  Britannic  jMajesty's  Attorney- 
General; 

Sir  liichard  Webster,  Q.  C,  M.  P., 

And  Mr.  Christopher  Kobinson,  Q.  C. 

Tlie  i)resident  invited  Mr.  Henri  Feer,  formerly  a  consul  general  of 
France,  to  draw  up  the  protocol  of  tlrs  meeting,  with  the  assistance  of 
Messrs.  Williiims  and  Tupper. 

Mr.  Williams,  acting  for  the  Government  of  the  United  States,  asked 
tliat  tlie  'rriluinal  adjourn  till  the  '-'3d  of  March. 


Tbe  orisiiiiil  text  of  the  Protocols  it*  iu  French. 


13 


14 


PROTOCOLS. 


Mr.  Tapper,  in  the  name  of  the  British  Goveriuneiit,  snpported  the 
request  of  Mr.  Winiaiiis. 

Sir('hnrles  liiisscll,  the  lending  counsel  fordreat  JJritaiii,  stated  tliat 
Hie  counsel,  though  previously  aware  of  the  re(|Uest  wiiich  would  l>e 
made,  thou}>ht  it  rij^ht  to  attend  tlie  lirst  meeting,  out  of  respect  for  'he 
Tribunal  of  Arbitration. 

The  Tribunal  of  Arbitration  acceded  to  the  request  maile  in  the  nanie 
of  the  two  parties,  and  agree*!  to  adjourn  to  the  L'.'Jd  of  .March. 

The  question  of  the  jjublication  of  the  easels  and  counter  cases  having 
been  mentioned,  tlie  arbitrators  stated  that  it  wasnota  subject  for  their 
consideration. 

In  regard  to  the  i)ublicati»)n  of  the  pn>to('ol  of  this  nu'eting,  the  arbi- 
trators present,  finding  tliemselves  in  insulllcient  inunber  to  give  a 
decision  which  would  bind  tlie  Tribunal  of  Ari>itration  for  the  future, 
announ«-ed  that  the  protocol  of  the  meeting  of  the  li."5d  of  February 
should  be  kept  sectret  until  further  (u-ders. 

The  Tribunal  of  Aibitration  adjourned  till  March  2.'{. 

So  done  in  Paris,  the  2',id  of  February,  l.S!>;{,  and  have  signed: 

The  rrcHuJcni :  ALI'JI.   DK   CoURCEL. 

The  Spirhd  A, If  II I  for  llie  Viiiiid  ataUn:  WlLI,IA:\l    WlIXIAMS. 

The  Aijiiil  for  (hrni  Urititiii  :  ClTARLI'-S    11.   Tfi'l'I::!!. 

The  Srcrclarii :  11.   FkKU. 

Tri'.nslation  certified  to  be  accurate: 

A.   lUlLLY  IlLANOIIAKU,   ) 
U.  CUNiMillAME, 


''  /  Co  Sccirtttries, 


PROTOCOL  II. 

MEET!N(}   OF   MAUCII   23,    1S03. 

The  Tribunal  asstniibled  at  Paris,  as  had  been  agreed,  at  the  French 
^Ministry  for  Foieign  Affairs. 

There  were  present  the  seven  members  of  the  Tribunal  of  Arbitration  : 

The  Ilonorabh'  John  M.  Harlan,  .Justice  of  the  8ui>rcme  Court  of  the 
United  States, 

And  the  IToimrable  John  T,  Morgan,  Senator  of  the  United  States, 
the  arbitrators  named  by  tlie  United  States; 

llis  Excellency  the  Haron  Alphouse  de  Courcel,  Senator  of  France, 
the  arbitrator  named  by  France; 

The  Right  Honorable  Lord  Hannen,  Lord  of  Appeal, 

And  Sir  John  Thompson,  IMinistei'  of  Justice  for  the  Dominion  of 
Canada,  the  arbitrators  named  by  Great  Britain; 

llis  Excellency  the  Marquis  E.  Visconti  Venosta,  Seiuitor  of  Ital^, 
the  arbitrator  named  by  Italy  j 


I'KOTOCOI.S. 


15 


le  French 


And  His  Kxcelloncy  Mr.  (irt'gei's  (Irani,  the  arbitrator  named  by 
.Sweden  and  Norway; 

Tlie  Ilonorabhi  John  \V.  FosttT  and  the  Honorable  Charles  II.  Tnp- 
per.  Minister  of  Marine  and  Fisheries  Cor  tiie  Dominion  of  Canada, 
were  ])resent  at  the  meetino"  as  agents  lor  tlie  (jovernments  of  the 
United  States  and  Great  IJritain. 

The  members  of  the  Tribnnal  of  Arbitration  assured  themselves  that 
their  respective  powers  were  in  due  and  valid  Ibrm. 

liord  llannen,  one  of  the  arbitratt>rs  named  by  Creat  iSritain,  rose 
to  i)ropose  that  His  Kx<*elleney  tiie  Haron  de  Conn-el,  the  arbitrator 
nanu'd  by  France,  sliould  be  re(piested  by  his  colleajiiies  to  assume  the 
presidency  of  the  Tiibunal. 

The  Honorable  .lohn  M.  Harlan,  one  of  the  arbitrators  name<l  by  tiie 
United  States,  snjiported  the  proposal  of  Lor<l  irannen. 

The  other  members  of  the  Tribunal  of  Arbitration  havin{:f  a;;reeil  to 
the  projiosal.  Baron  de  Courcel  took  the  chair  as  president  and  deliv- 
ered the  following  address: 

GENTLE5IKN:  You  have  b(>en  jilcased  to  exercise  in  my  favor  that 
courteous  usage  which,  in  i>roceeilings  of  an  inlernatioiial  character, 
confers  the  presidency  upon  the  representative  <»f  the  country  in  which 
the  meeting  is  held. 

The(iovernnicntsof  (Ireat  Britain  and  the  United  States  of  America 
have  detcriiiincd  to  end  the  long-standing  dispute  concerning  the 
Bering  hsheries  by  a  friendly  arbitration,  and  in  choosing  Paris  tor  the 
seat  of  it  they  have  paid  a  distinguisiu-d  <!omplimeiit  to  France  and  to 
her  <;a|>ital  city. 

I  venture  to  say  that  both  are  worthy  of  it. 

Nowiiere,  be  sure,  would  you  havi'  found  yourselves  surrounded  by 
a  more  sincere  and  wuini  sympathy  with  tlie  great  and  good  woik 
Avhieh  y<ui  are  charged  to  carry  out.  Througii  all  theslnxdvsaud  tiials 
which  the  hard  necessity  of  »nents  inflicts  upon  mankind  France  has 
remained  steadfast  to  ideals.  ICvery  genercuis  conception  moves  and 
captivates  her.  She  has  a  jtassion  for  the  cause  of  human  progress. 
And  what  aim  can  be  more  ide;d,  what  progress  more  noble  and  worthy 
f  attainment  than  the  gr.ulual  disappearance  from  among  the  peo[de 
of  tiie  earth  of  a  reji-iMirse  to  brute  force. 

This  is  the  aim  olj  proceduie  by  arldtration,  and  each  new  recourse 
to  it  brings  us  neaver  to  that  eiul  by  furnishing  another  proof  of  the 
actual  possibility  oi  that  which,  even  yesterday,  seemed  but  a  dream. 

Some  years  ago,  by  the  peaceful  aiUliorityof  a  decisitui  which  two 
jnoud  and  powerful  nations  had  previiuisly  agreed  to  accept,  the  arbi- 
trators assembled  at  C<eneva  put  a  hapjiy  eiiil  to  a  dispute  which  it 
seemed  at  one  time  itould  only  terminate  in  war. 

The  Geneva  arbitration  was  an  epoch  in  international  relations.  It 
may  be  said  to  have  revived  the  old  law  of  mitions,  and  <»pened  to  it  a 
new  era  with  a  boundless  pro.spect  of  beneficent  cimse^uences. 


16 


I'ROTOCOr.S. 


. 


The  two  nations  which  subniittod  to  the  (leneva  verdict,  in  spite  of 
tlio  sjieiifices  wliicli  at  lirst  it  seeined  to  involve,  liave  evidently  not  in 
the  lonj?  run  rej)ented  of  their  ar)i)eal  to  moral  force,  for  to-day  the> 
renew  that  appeal  by  common  (Consent,  in  analogous  circumstances.  It 
is  true  that  the  cause  that  is  to  1)(^  ])leaded  before  u.s  is  not  one  which 
apparently  wouhl  let  loose  the  scourge  of  war,  but  short  of  war  how 
mafiy  evils  are  caused  to  nations  by  lasting  coldness  and  by  the  per- 
sistence of  bitter  sentiments.  Like  individuals,  nations  owe  a  duty  to 
charity,  and  when  yielding  to  i)ride  they  fail  to  obey  the  laws  of  Provi- 
dence they  inflict  upon  themselves  many  tflifi'erings. 

If  arbitrations  had  no  ofher  effect  tiian  to  ])reserve  them  from  this 
peril,  they  would  be  an  incalculable  blessing  ami  service  to  the  broth- 
erh<K)d  of  humanity. 

Your  presence  in  this  room,  gentlemen,  is  the  most  eloquent  evidence 
of  the  value  which  attaches  to  your  expected  decision. 

England,  from  all  time  so  rich  in  eminent  Jurists,  America  and  Can 
ada,  who  hand  down  in  their  turn  and  in  a  new  world  a  tradition 
whose  ancestral  origin  may,  perhaps,  be  sought  in  our  old  Norman 
soil,  have  delegated  men  whose  knowledge  and  rare  penetration  have 
been  applied  in  the  highest  and  most  delicate  functions  in  the  magis 
tracy,  or  in  the  disi-ussious  of  political  assemblies  whose  prudence  was 
renowned. 

Beside  them  I  see  a  politician,  a  wise  heir  of  the  illustricms  Cavour, 
whose  premature  and  voluntary  retreat  from  European  dii)loniacy  has 
been  the  subject  of  deep  regret. 

Another  of  our  colleagues  from  North  Scandinavia,  whose  reputii 
tion  has  preceded  him,  has  occu[)iod  one  of  the  higiiest  ])ositions  which 
could  be  conferred  upon  him  by  the  just  confidence  of  the  sovereign  ot 
two  twin  kingdoms,  each  equally  jealous  of  its  individuality. 

At  your  bar,  to  represent  the  two  great  powers  wiio  have  confided 
their  cause  to  you,  appear  politicians  of  ♦^he  first  order.  One  of  them 
only  lately  guided  the  foreign  relations  of  the  great  American  Repub 
lie.  They  are  assisted  by  counsel  accustomed  to  occupy  the  front  rank, 
either  at  the  bar  or  in  the  government  of  their  country,  and  whom  tiio 
admiration  of  their  countrymen  on  each  side  of  the  Atlantic  hails  a.- 
princes  of  eloquence. 

It  is  an  honor  sutlicient  to  dignify  an  entire  life  to  be  asked  to  sif 
with  men  like  these,  and  the  responsildlity  of  i»residing  among  them 
would  be  overwhelming  if  he  whom  his  colleagues  have  charged  witli 
this  duty  could  not  count  on  their  unvarying  and  indulgent  supi)ort. 

May  divine  Providence,  on  whom  depends  all  human  action,  give  ii>  | 
the  strength  and   inspire  us  with  the  wisdom  necessary  to  fulfill  our 
diflieult  mission,  and  thus  to  advance  a  stage  nearer  to  the  realizatioii 
of  the  words  of  consolation  and  hope  of  llim  who  has  said  " lilessitl  J 
are  the  peaeenmkers,  for  they  shall  inherit  the  earth." 


PUOT(1COLS. 


17 


ill  spite  of 
utly  not  in     • 
„.(liiy  tliey 
tiinces.    It 
,  one  wliicli 
)f  war  liow 
by  tlie  per- 
re  a  duty  to 
ys  of  Provi 

in  from  tliis 
;o  the  broth 

iMit  evirtencf 

i<!a  and  Can 
I  a  tradition 
ohl  ^oruian 
etration  have 
in  the  niajjis 
prudence  was 

rious  Cavour,    : 
liploniacy  has    ■ 

hose  reiiutii 
ositions  whirh 
c  sovereign  ot 

ity. 

lavo  contided 

One  of  til  em 

erican  Kepuh 

the  front  rank. 

and  whom  tlm 

antic  hails  as 

»e  asliod  to  sit 
g  among  theiit 
c  charged  witli 
gent  support, 
action,  give  us 
vy  to  i'ultill  oni 
the  realization 
said  "  Blessid 


GcntUMnen,  T  trust  tliat  I  represent  your  wislies  in  proposing  t»>  y()U 
to  break  up  our  present  meeting,  in  order  to  convey  our  respects  to  tlio 
rresich'iit  of  the  Freucli  lte|>ul)Uc,  together  with  an  expression  of  our 
gratitude  for  thc^  lu)spitality  whidi  \vc  are  receiving  from  France. 

On  the  pro|K)sal  of  tlie  presidt-nt,  .Mr.  A.  Imbert,  a  minister  phMiipo- 
tentiary  of  France,  was  nannul  secretary  to  the  Tribunal  <»f  Arbitration. 
IJaron  de  Conrcel  then  invited  the  FiUglish  and  American  arbitrators 
to  name  for  their  respective  nationalities  a  secretary  to  be  associated 
,vith  the  secretary  of  the  Tribunal.  It  was  agreed  that  this  appoint- 
ment should  be  nmde  at  the  next  meeting. 

The  Tribunal  fixed  tlie  days  and  hours  of  its  meetings. 

In  conformity  with  the  stipulations  of  tim  treaty  of  Washington  of 
the  L'Dth  <tf  February,  1S!»2,  the  ag«Mits  of  the  (iovernments  of  the 
United  States  and  Great  Britain  laid  before  the  Tribunal  the  printed 
arguments  of  their  resi)ective  (iovernments. 

The  agent  of  the  Tnited  States  having  intimated  that,  owing  to  an 
oversight  in  printing,  there  was  an  onn'ssion  in  the  appendices  of 
authorities  cited  in  the  argument  of  the  I'nited  States,  he  was  author- 
ized to  present  at  a  later  date,  as  an  api)endix  to  the  argument,  a  sup- 
plement containing  the  citations  omitted,  with  the  reserve  of  tlie  right 
on  the  part  of  the  British  Government  to  present  a  reply  to  the  cita- 
tions shouhl  they  deem  it  to  be  necessary. 

The  agents  of  the  respective  Governments  stated  that  they  had 
agreed  to  arrange  for  taking  shorthand  reports  of  the  daily  proceedings. 

It  was  announced  that  the  proceedings  were  now  i)ublic,  and  admis- 
sion to  the  discussions  would  be  upon  the  i>resentation  of  cards  of 
admission,  to  be  issued  by  the  secretary  of  the  Tribunal. 

Tlie  Tribunal  of  Arbitration  adjourned  till  the  -ith  of  April  next. 

Done  at  Paris,  tlie  23d  of  March,  1893,  and  signed: 

Tin- I'reaident :   ALFII.   DE  COUUCEL. 
Thv  .iijentfortlie  I'liili-d  Stales:  JoilN    W.   FoSTHK. 
The  Aijent  for  Great  liriiiiin:   ClIARLES   II.  TUPIMUI. 
The  Seentnnj  :   A.   1MBE1{T. 

Transliifion  certified  to  be  accurate: 


A.  Baillv-Blanciiaui).  ) 


11.   ClNYNGlIAME, 
B  S — VOL  I 2 


■  C'u-^ScrrcUirics, 


18 


ritOTOCOLS.. 


i^i 


TKOTOCOL  III. 

MRKTINO  OF  TUESDAY,  AIMIIL  4,  1803. 

At  11.45  the  Tribunal  assembU'd,  all  tlic  arbitrators  beinjj  present. 

Tlie  president  announced  that  the  Tribunal  had  (lecided  to  appoint 
Mr.  A.  Bailly  l^lanchard  an<l  Mr.  Cnnynyliame  as  co-secretaires  with 
M.  Imbert. 

Also,  M.  le  Clievalier  llajnotti,  M,  Henri  Feer,  and  M.  le  Viconite  de 
Manneville  as  assistant  sc<u'etaries. 

Tlie  president  announced  that  the  Tribunal  was  ready  to  hear  any 
inotio}!  by  either  of  the  parties. 

Sir  Charles  Itussell  then  spoke,  and  at  the  close  of  his  speech  he 
si'bniitted  the  following  motion: 

Tliat  t)iu  ii^iiiit  uf  tlif  United  Stiitcs  ttu  callu<l  iiixxi  to  prodiicn  tlic  oriKiiKil  or  .a 
certified  copy  of  tlu!  vcjjort  inado  by  Henry  W.  Elliott  ou  ilio  Kiilijuut  of  fur  souls 
XMirHiiiiut  to  act  of  Ct  igress  of  ISDO. 

Sir  Richard  Webster  supported  the  motion. 

The  Honorable  E.  .1.  IMielps  replied,  and  submitted  the  following 
answer  to  the  motion : 

Tlio  United  States  Governmoiit  denies  that  Iter  Iliitaiinic  Majesty's  Govonimeut  is 
entitled  under  the  ])rovision«  of  tlie  treaty  to  any  order  by  the  Tribunal  for  the 
production  of  the  document  sjjccitied  in  the  motion,  as  a  matter  of  right. 

'I'ho  United  .States  Government,  however,  is  willing  to  waive  (so  far  as  it  is  con- 
cerned) its  right  of  objection,  and  to  furnish  to  the  agent  <)f  Her  Majesty's  Govern- 
ment a  copy  of  the  doc'iimeut  referred  to,  for  su(di  use  as  evidmico  as  the  Tril>nnal 
may  deem  proper  to  allow ; 

Not  conceding,  however,  in  so  doing  that  either  \y<uly  at  this  or  any  subseiiuent 
stage  of  the  proceedings  has  a  right  to  introduce  any  further  evidence  whatever, 
upon  any  subject  whattu'er  connected  with  the  controversy. 

And  further  stipulating  that  if  the  document  referred  to  in  this  motion  shall  bo 
used  in  evidence  at  all  it  shall  be  open  to  the  use  of  both  parties  eijually  in  all  its 
points, 

Mr.  James  C.  Carter  followed  in  supjiort  of  the  answer. 
The  court  adjourned  for  a  short  tinu;. 
On  reassembling,  the  president  said : 

The  Tribunal  directs  that  the  above-named  docunuiit.  l)e  regarded  as  before  the 
Tribunal,  to  be  made  such  use  of  as  the  Tribunal  thinks  (it. 

The  agent  for  the  Unircd  States  then  read  the  following  motions: 

!»•,  The  agent  of  the  United  .States  desires  to  bring  to  the  attention  of  theTrilninal  ol 
Arbitration  the  fact  that  ho  has  been  informed  by  the  agtuitof  Her l?ri tannic  Majesty, 
in  a  note  dated  March  25  ultimo,  that  ho  has  sent  to  each  uf  the  nuMubers  of  the 
Tribunal  copies  in  duplicate  of  a  ''Hupplenunitary  Heport  of  the  British  Comniis- 
sioiiers  Appointed  to  Inijuire  into  Seal  Life  in  Hiring  !^ea." 

The  agent  of  the  United  States,  in  view  of  this  information,  moves  this  Honorable 
Tribunal  that  the  document  referred  to  be  dismissed  from  consideration  and  be 
returned  to  Her  ilajesty's  agc-nt,  on  the  gr-Miud  that  it  is  submitted  at  a  time  and  in 
a  wanner  not  allowed  by  the  treaty. 

2'"'.  The  agent  of  the  Unittsd  States  moves  this  Honorable  Tribunal  to  dismiss  from 
the  arbitration  so  n^uch  of  the  demand  of  the  Goveniiuent  of  Great  liritain  as  relates 


PROTOCOLS. 


19 


Vicointe  de 


le  following 


1  ;i8  before  the 


to  tilt*  Biiin  Htiitfld  upon  paKn315ot'  ilie  Counter  ('iihi;  of  nain  novernniont  to  liiive  been 
incurred  on  iieeoiiiit  of  expenses  in  eonnoetion  witii  proceed iiio;s  liofore  the  Su|ironio 
Court  of  the  United  Stiites; 

And,  nlHo,  to  diHinisH  from  the  arbitration  the  claim  and  re(|ueHt  of  the  huiuo  (iov- 
ernnient,  iiieiitioiKMl  on  Hiiid  p!i.<;o  315,  tliat  the  arbitrator.-*  tiud  what  eateh  or  eatc^lieH 
nii^ht  have  been  taken  by  ])ela}ric  sonlerH  in  Iteriii);  Sea  witliout  undn(<  diuiinutioii 
of  the  Heal  herd  during  the  pendency  of  this  Arliitratioii; 

And,  furHier.  to  dismiss  from  the  Arbitration  the  claim  of  the  same  (iovernmeiit, 
mentioned  on  the  said  pa^e  315,  to  show  payments  by  it  to  the  Canadian  owners  of 
selling;  vessels; 

And  that  all  proofs  or  evidence  relating  to  the  foreKoiuf?  claims  or  matte's,  or 
either  of  them,  be  stricken  from  tln^  llritish  Counter  Case,  and  in  particular  those 
found  on  iia<j;es  '2l't  to  2:.'lt,  inclusive,  of  Volume  II  of  the  Appendix  to  said  C'ounter 
(Jase. 

The  f^round  of  the  forejjoiuK  motion  or  motions  is  that  the  claims  and  matters 
aforesaid  are,  and  each  of  them  is,  presented  for  the  lirst  time  in  the  Counter  ('asn  of 
the  Government  of  (ircat  Hritain,  and  tiiat  they  are  not,  nor  is  eitlier  of  them,  j)er- 
tinent  or  relevant  by  way  of  reply  to  the  Case  of  the  United  .states  or  to  anytliiiifj 
contained  therein,  except  so  far  as  the  sante  may  teiul  to  8npi)ort  <daims  for  damaj^es 
distinctly  made  in  the  ori;.;inal  ease  of  the  lioverument  of  (Jreat  Hritain,  and  that 
BO  lar  as  they  come  under  that  head  the  matters  are  irrejfular  as  beiny;  eunuilativo 
only. 

The  president  liiiving  remarked  that  the  in<tti(nis  should  be  coiisid- 
ered  separately  and  that  the  discussion  upon  these<;ond  motion  brono-ht 
forward  by  the  United  States  should  b«^  i>osti)oned  to  a  subs»!(|uent 
period  of  the  proceedinjjs,  the  Honorable  K.  J.  Phelps  addressed  the 
court  in  support  of  the  lirst  motion  relative  to  the  supplementary  report 
of  the  British  Commissioners. 

At  4  p.  ni.the  Tribunal  adjourned  to  the  next  day  at  11.30. 

Done  at  Paris,  the  4th  of  April,  1893,  and  signed : 

The  President:   ALPII.   I)E  CoVRCVAj. 
The  Afient  for  ihe  Unileil  Stales :  JOHN   W.   FOSTER. 

The  Agent  for  Great  Briutin  :  CHARLES    11.  TUITEU. 
TheSicrttary:   A.  ImBKRT. 

Translation  certified  to  be  accurate: 

A.  Bailly  Blanciiard,  )  />    t-       i     • 

H. CUKYNGHAME,  ) 


PROTOCOL  IV. 

MEETING   OF   WEDNESDAY,  APRIL  5,  180,3. 

At  11.45  a.  ni.  the  Tribunal  assembled,  all  the  arbitrators  being 
present. 

The  Honorable  E.  J.  Phelps  continued  his  speech  of  the  previous 
day  and  concluded  his  argument. 

Mr.  James  C  Carter  announced  that  lie  had  no  additional  remarks 
to  offer. 


20 


PUOTOCOLS. 


Hir  C'liiirh's  I'lissoll  opposiMl  tliu  motion  uiidur  (lis(;iis.siuii  on  the  fol- 
lowiiifj  grounds: 

'riiiit  tlio  Hii|)|il*-iiicntar,v  rciiurt  of  tliu  ItritiHli  C<iininissiiiiii>r8,  diitt'd  thoSlHt  Jaiui- 
ury,  1H!):I,  \h  pi'iiHi-iittMl  Holuly  with  I't't'ori-iKtu  to  tlm  *|iii>.st.iiiu  of  rr^iiliitioiiH,  ami, 
>iutl«!r  tlm  provisions  of  the  Trcit v  of  Arlutriilion  of  Kclniruy  2!(,  IHSii,',  is  properly 
prcsfiitt'il  to  tilt!  Tril)iiii!il,aiiil  mo  slioiiKl  hu  consitltM'uil  liy  tlusii  in  lliiMivtMit  of  tliuir 
l)«-inK  I'iillud  upon  to  <luterniinu,  iinrsuunt  to  Article  VII,  wliut,  if  any,  concnrrent 
re^ulatious  are  neci'ssary. 

TlieTiibiimil  adJoiinHMl  for  a  sliort  time. 

Oiireassembliii};,  Sir  ('Imrles  Knssell  contiiiued  liis  iirjjument. 
At  I  p.  m.  tlie  Tribmiiil  inljomned  to  tlie  next  day  at  il.'M). 
So  done  at  Paris,  tiie  Tith  of  April,  J.S!);>,  and  .signed: 

The  Pn»idvnt :  ALPII.  1)E  COUKOEL. 
Thc.lyenlforthc  riiilvd  States :  .JOIIN  W.  FoS'J'ER. 

The  Junilfor  (Inat  Jiiilain:  CllARLES   II.  TUITEK. 
The  Svvntarn:  A.  LmUEUT. 

Translation  certilied  to  he  ac(Mirate: 

A.  Uaillv-Hlanciiakd,  /  .,    .,    ,  ,,..•„ 

U.  CUNYNOIIAME,  ) 


PKOTOCOL  V. 

Ml':E'riNO   OI'  TlIl'HSDAY,   APIML  0,   1S93. 

The  Tribunal  assembled  at  11.30  a.  m.,  all  the  arbitrators  being 
present. 

Sir  Charles  Itussell  resnmed  his  speech  of  the  previous  day  and 
conehided  his  arjjumeut. 

Sir  Kiehard  Webster  said  that  he  had  nothing  to  add  to  Sir  Charles 
Kussell's  remarks. 

Mr.  James  C.  Carter  replied  in  8ui)port  of  the  motion  made  on  behalf 
of  the  United  States. 

At  1.30  the  Tribunal  adjourned  for  a  short  time. 

On  reassembling,  Mr.  James  C.  Carter  continued  liis  argument. 

At  4  p.  m.  the  Tribninil  adjourned  to  the  next  day  at  11.30  a.  m. 

Done  at  Paris,  the  Otli  of  April,  1893,  and  signed: 

The  I'rimhnt :   AlPH.   DE  COURCEL. 
The  Agent  for  the  rnitcd  States :  JoiIN   W.   FOSTER. 
The  Agent  fur  Great  Jiritain:  CllARLES  H.  TUPPER. 
The  Sevretary:  A.  ImBERT. 

Translation  certitied  to  be  accurate: 


A    1UILLY-I5LAN0IIARD,  )  ^-o.^to^ane*. 
it.  CUNYJSGUAME,  J 


)ii  oil  tlie  t'ol- 


PUOTOCOLS. 


PU<)T(H!(>L  VI. 


21 


MKKTlNa   OK   riMDAY,    APKIf-   7,    181)3. 

Tlio  Trilmniil  iisscinhli'd  at  11.10  a.  in.,  all  tlu^  arbitrators  boing 
present. 

Tlie  llonori'hle  K.  .f.  IMiolps  calh'd  tlio  attention  of  the  Tribunal  to 
certain  errors  in  tlie  sliortliaml  notes. 

The  president  stated  thiit  th(^  only  oHieial  minutes  \vlii<'ii  were 
specially  under  the  authority  of  the  Triiinnal  were  the  protocols;  tlio 
resjionsibility  of  the  sln»rthaiid  notes  rested  exclusively  with  the  iifjenta 
of  the  two  (Jov«'rmnents. 

Mr.  James  C.  Carter  then  continued  his  argument  on  behalf  of  the 
United  States. 

At  l.'M)  the  Tribunal  adjourned  for  a  short  time. 

On  reassembling,  Mr.  Carter  continued  and  concluded  his  argument. 

The  counsel  on  both  sides  then  excliaii^jed,  witli  tli<^  sanction  of  the 
]U'(^sideiit,  scmie  supplementary  exi)Ianations  on  points  relevant  to  the 
arguments  which  had  previously  taken  phu-e. 

Tln!  Honorble  K.  J.  Thelps  having  afterwards  ai)plied  to  have  the 
second  motion  considered,  the  Tribunal  declared  that  it  wouhl  announce 
its  intentions  on  this  subject  at  the  next  meeting. 

At  3.r)0  p.  m.  the  Tribunal  adjourned  to  Tuesday  for  a  private  meet- 
ing, the  public  n:    'tingbeing  postponed  to  Wednesday,  A[)ril  12,  1H93. 

Done  at  Paris,  the  7th  of  April,  l.SJKJ,  and  signed: 

The  I'reHiiUnt :    AlI'II.  DE  CoFRCEL. 
The  Agent  for  the  United  States : 
The  Agent  for  Great  liritain  : 
The  Secretary : 

Translation  cert i lied  to  be  accurate: 

A.  I5A1I.lv  IlLANCIIAWn,  )  ^     o        ^      • 
U.  CUNVNCHIAMK,  ) 


.loIIN   W.    FO.STEU. 
ClIAKLKS   n.  TUFl'EU. 
A.  IMIIKIIT, 


riiOTOCOL   VIT. 

MEETIXa   OF  WEDNESDAY,  APlllT-   12,  1893. 

The  Tril)unal  assembled  at  11.40  a,  m.,  all  tiie  arbitrators  being 
present. 

The  president  then  read  the  decision  of  the  Tribunal  with  reference 
to  the  "Supplementary  Report  of  the  British  Bering  Sea.  Co'  ••  ission- 
ers, "  dated  January  31, 1803,  the  admissibility  of  which  was  the  subject 
of  the  debates  which  took  place  at  the  i)revious  meetings. 

The  terms  of  this  decision  are  as  follows: 

It  la  ordered  that  tlic  docuiiiont  entitled  a  "  Supplementary  Kepnrt  of  tlie  OritiMli 
Bering  Sea  ConimissionerH,"  dated  .liiiiu.ary  Slst,  1893,  aud  signetl  by  George  Haden 


22 


PROTOroLR. 


I'owi'll  mill  (Icor^o  M.  DikWHoii,  iiiiil  di-livcrcil  tu  Ww  iiDlhiiliinl  uil>itriitiirH  by  tlin 
aj;<!iit  of  UtT  l!ritiiiiiii<'.  Majesty  on  tlif  '-'."»tli  <iiiy  of  Miinli,  l>f!»3.  iiixl  wliicli  coiitMins 
It  i;ritii  mill  uf,  or  iir;;iiiiifiit  11(1011,  tilt' I'viiliMictt  in  tint  <lo<!iiiiii)ntH  niiil  icipiTM  pirvi- 
oii.tly  ili>liv«rci|  to  till  iii'liiti'utorM,  In;  not  now  riM-i>iveiI,  witli  lilmrty,  liowcvi-r, 
resiTvidl  to  iioiiiiMiO  to  iiilo|it  Hiii-li  ilociinieiit,  iluteil  Jitnnnry  Slnt,  WXi,  nn  |mrt  of  thoir 
oral  iii'uiiniiMit  if  tlii>v  iliMfiii  propiT. 

Till)  ipii'Htioii  UH  to  tlir  ailiiilHMiliility  of  tlii>  ilociiiiittiitH,  or  uiiy  of  thcni,  rotiHtitnt- 
\un  tliii  uppiMiiliiM'S  iittaclicil  to  NuLil  ilociuncnt  of  .laiinny  Mnt,  18!t3,  \n  i-kmi  rvi-il  for 
fiirtiuT  roiiHiiii;ratioii,  witliotit  iirrjiiilico  to  tint  ri);lit  of  <-oiiiisi-l  on  citliur  hUUi  to 
iIIhimism  that  qui'stion,  or  tlio  contents  of  tlio  appiMiiliroH,  in  tin;  coiirm)  of  the  oral 
iii'^iiini-iitH. 

T\w  prcsiihMit  tiKMi  read  a  sciMnid  (l«H'i.si(Hi  of  tlie  Trilxuiul.  This 
division,  wliicli  rchitos  to  tlic  appiriitioii  of  tlic  lloiiondiU'  K.>),  lMi(>li)s, 
pr«'S»Mited  at  the  close  of  th«'  pnnu'din;;  iiici'tiiiy',  and  liavinji  relereiico 
io  the  consideration  of  tliu  s(>(;ond  motion  of  the  United  States,  is 
worded  in  tiiese  teiins: 

It  is  oriliMed  tlmt  tlii)  ary;niiient  ami  coiiNiil(>ratioii  of  the  motion  iiiaile  hy  tlie 
IJniteil  States  of  Anieiiia,  on  the  tlh  day  of  April,  l8tK{,  to  Htiikii  out  certain  parts 
of  ilic  eoitnter  i.'aHo  and  proofs  of  the  (iovitriiiueiit  of  (ireat  Mritain,  lie  postponed 
until  such  time  as  may  lie  hereafter  indieated  by  tlio  Trilninal. 

Tlie  president  tiieii  ex|)ressed  tliedesir<'  of  theTribm  1  not  to  spcMid 
time  in  disenssions  on  iirocediire,  hut  to  enter  as  soon  ]iossil)le  upon 
the  main  question. 

lie  accordingly  invited  the  counsel  to  address  themselves  immediately 
to  the  matter  at  issue. 

Sir  Charles  Uussell  indicated  thr>  order  in  which  it  had  been  aj^reed 
the  (counsel  would  jiresent  their  arfjuments,  and  his  statement  was  con- 
lirnied  by  .Mr.  James  ('.  Carter. 

The  president  de(^lared  that  the  Tribunal  would  ai)iu'ove  of  ilu'  mode 
of  proceed  in  J*-  ajireed  upon  by  the  counsel,  but  he  requested  them  to  be 
kind  enough,  as  far  as  jicssible,  in  the  arrangement  of  their  argunuuits, 
to  keep  seiiarate  the  discussion  on  the  matters  relating  to  right  and 
those  relating  to  the  regulations  which  might  eventually  be  proposed. 

Mr.  James  C.  Carter,  after  thanking  France  for  her  hospitable  re(!ep- 
tion,  began  1  is  argument  in  behalf  of  the  United  States. 

At  1.30  th    Tribunal  adjourned  for  a  short  time. 

On  reassc    bliiig,  Mr.  James  C.  Carter  continued  his  argument. 

At  1  ]).  m    he  Tribunal  adjourned  to  the  next  day  at  11.30. 

Done  at  1    :is,  the  12th  of  April,  1803,  and  signed: 

rite  VremUnt :  ALPII.   1)E  COUROEL. 
The  Ayeiit  for  the  VvUed  Sliilcs:  JOIIN   W.  FOSTER. 
'/lit  .l(j<iit  for  (hint  JMIain:  ClIARLES   U.   TUPPER. 
The  Sea-el ary  :  A.   TmBERT. 
Translation  cert  Hied  to  be  accurate: 

\.  liAiLLV-BLA^OHARD,  J  Co-ISccretaries. 

M.  CUNYNGHAME,       ) 


PROTOCOLS. 


23 


I'KUTOCOL   VI IF. 

MEKTINO  OF  TIMIISDAV,  Al'ltir,  l.'J,  1S!)3, 

r)i<>  Tiiltiiniil    iissctnltliMl  at  11.10  a.  in.,  all    tlu'!  arliitrators  Uviw^ 

plt'St'llt. 

Mr,  .laiiics  r.  Cartor  rcauiiicU  liis  ar};iiiin'iit. 

At  l.MO  i\w  Ti  ibmial  adjonnuMl  lor  a  short  time. 

On  rrassjMnhlinjj,  Mr.  James  ('.  Tartor  ciHitinntMl  liin  ar^iunuMit. 

.\t  4  p.  nt.  till'  Tribunal  adjourned  to  the  next  day  at  IL.'tO  a.  m. 

Done  at  Paris,  the  I.Uh  of  April.  l.S<);{,  and  si-;ned: 

n<    I'rtHidiiit:    Al.lMI.   DK   CoiKCKL, 
The  .tijoit  for  llie  Inilnl  SIuIih:   .IoIIN    W.    T'oSTKU, 
The  Aijvnt  for  ('.rent  Itriluht:   ("UAUr.KS    II.   TuiTEIl. 
The  SiTiTlarif :    A.    iMUKlll. 
'rranslatjon  (•I'rtillcd  to  ho  aiuMirate: 

II.  Ci;NVN(iiiA:\iK,  ) 


I'HOTOCOL  IX. 

MEKTI\(t   OF   FRIDAY,  XVMU.   11,  1803. 

The  Tribunal  assembled  at  11.10  a.  ni.,  all  the   arbitrators  bein;; 
present. 
Mr.  .lames  (].  Carter  resumed  his  ar<junient. 
At  1  oVIoek  the  Tribunal  adjourned  lor  a  short  time. 
On  reassembliiifj:,  Mr.  .James  C.  <!arter  eontinued  his  ar<iuinent. 
At  4  p.  m.  the  Tribunal  adjourned  to  Tuesday,  Ajuil  18,  atll..'{Oa.  m. 
Done  at  Paris,  the  14th  of  April,  IS!).),  and  signed: 

The  I'nmdenI :   AlPII,   1)E  CoUUrKL. 
The  A  unit  lor  the  Viiilcd  Slates  :  .TOIIN   W.  FOSTKK. 
The  .liieiit/or  thrat  llriluin:   ClIAWLES   11.  TuiM'ER. 
Th,   Serrelarn :   A.  LaIUEUT. 
Translation  certilied  to  be  accurate: 

A.    I>A1LLY-1)LAN<'IIAU1), 
If.  CUNVNGIIAMK, 


'  [  (Jo- Seer e 


tarics. 


PROTOCOL   X. 

MEETING   OF   TUESDAY,  AlMJir.   IS,  1893. 

The  Tribunal  assembled  at  1\.'M)  a.  m.,  all  the  arbitrators  being 
jiresent. 

The  ju-esideut,  at  the  oj)ening  of  the  meeting,  referring  to  a  few 
renuirks  which  he  had  made  at  the  end  of  the   preceding  sitting. 


PT^ 


24 


PROTOCOLS 


;uiii()niic<'(l  that,  if  in  flic  (Mtnrst^  oftlu'  injiiiinoiita,  tlic  arbitrators  were 
led  to  iiiiiki'  oliscrvatioiis  oi-  to  iiddrcss  (|n«vstioiis  to  counsol,  those 
<il)S(MViiti()iis  or  (lucstioiis  iiinst  not  ho  considerod  as  oxprossiiij*'  any 
oi)iiiioii  (»n  tho  i)art  ot  (lio  arhritrator  who  inakos  them,  and  still  loss  as 
Itindinji'  tho  conntry  to  which  ho  hclonj^s.  They  are  simply,  so  far  as 
the  Tribunal  is  oonoernod,  the  moans  ot'obtaininjf  from  tho  representa- 
tives of  the  ])artiea  a  more  oom])leto  obicidation  of  tho  i)oiiits  under 
discussion. 

r])oii  the  invitation  of  the  president,  ^^r.  James  C.  Carter  then  eon- 
tiiuu'd  his  arpuiiiont. 

At  l..'U)  the  Tribunal  took  a  recess. 

iJw  the  roassemblinfr  of  tho  Tribunal,  Mr.  Carter  resumed  his 
ar,£ruinent. 

At  4  -^  m.  the  Tribunal  adjourned  to  the  next  day  at  M.'M)  a.  ni. 

Done  at  Paris,  the  ISth  of  A]>ril,  l.S!».),  and  sij,'nod: 

The  ]'r€ni(lc)it :  ALI'H.   BE   COTTROEL. 

The  .tiiinl  fnrthe  I'uilcd  Slates:  -lOHN   W.    FoSTKR. 

The  Agent  for  flreat  liyilaiii  :  ClIARLES    li.  TUPPER. 

The  I'rcvdeiit :  A.   IMHEUT. 

Tr;nislati(»n  cortilied  to  bo  accurate: 

11.   Cl.NVNtillAME,  ) 


PROTOCOL  XT. 

7vii;etinu  of  avei)m;.si)Av,  aprtl  10, 1S03. 


The  Tribunal    assomhled  at  ll.oO  a.  uk,  all  tho  arbitrators  boiui: 
))rcsoiit, 

.Mr.  James  C.  Carter  resuiiu'd  his  arf>unient. 

At  1..U)  tho  Tribunal  took  a  recess. 

On  the  ri'ass(^mblinji'.  Mr.  Carter  continued  his  ai'^umont. 

At  4  p.  m.  the  Tribunal  adjourned  till  tho  lU'xt  <lay  at  I  l.'M)  a.  n). 

DoiHi  at  I'aris,  tho  111th  of  Apiil,  ISll.'i,  ;ind  sifjued: 

The  Tnsiileitt:  ALPH.    1)K   CoURCEL. 

The  A,/,  III  for  fhe  Ciiiltil  Slulen  :  .loiI.N  W.  FoSTKR. 

The  .hjeiit  for  Great  Jiril.iiii:  ClIARLKS    II.    TUPPER. 

TheSeinlorii:  A.   IMBERT. 

Translation  cortilied  to  be  accurate:. 

'  ,'•  iJolaccrctanes, 

11.  Cl  INVNGIIAME,  ) 


)itrator.s  woro 
oiinsol,  those 
pressing-  niiy 
1(1  still  loss  as 
ply,  so  far  as 
e  representa- 
l)()iiits  uimIci' 

ter  tlu'ii  (!on- 


rosnmcd    his 
.30  a.  m. 

ioURCEL. 

)STER. 

.  T  UPPER. 


PHOTCtCOLS. 


riioTocoi,  xn. 


26 


MKETINC    OF   TlUnSDAV.  AIMMF,   20.  ISf)?.. 

'I'lic  Trihiiiiiil  ;iss('iiil)l('d  at  n..".0  ;i.  in.,  ;ill  the  iirhitrators  bcint.- 
l>rcsciit. 

Thoiijiciitfar  tlic  (Tiiitcd  States  cauMM]  lo  be  (Iciivcicd  to  the  Trihuiial 
M  collection  of  "Citiifiniis  iVoiii  rhe  \vritiii.!.;s  ol'Jniists  and  economists 
as  an  appt'iulix  to  tlie  ;ii<:iiiiieiit  oC  the  I'liited  KStalcs.'' 

Mr.  James  0.  Carter  resumed  his  argument  of  the  precediiip-  day. 

At  l..'?()  the  Tribunal  took  a  recess. 

On  reasseiiiblin.ii,  Mr.  Carter  eontinnod  his  ar^iinieiit. 

At  4  p.  111.  the  Tril)iinal  adjourned  to  the  next  day  at  II.. '50  a.  m. 

J)one  at  rails,  the  20th  of  Aiuil.  IS!*.},  ;nid  signed: 

77i"   /'ir-idciit  :  Al.lMI.    Di;   CornCEL. 

TIic  .l(i('iit  for  the  I'liilfd  Sl,(trs  :  JoilN    W .    I'^OSTEI.'. 

The  J</(>ntfor  (Irtat  ISrildiii  :  ClIAi;r,i;s    II.   T UPPER. 

The  Serreturi/ :  A.    bllJJOliT. 

'riiinslation  cerliliiMl  to  be  accurate: 


A.    lUuj.V-BLANCirAUl),  )   ,,     ^,        ,      . 
,,    .,  '  >  to-SccrvUirics. 

II.   CUNVNGIIAME,  ) 


liUors  beiui; 


t. 

l.MO  a.  111. 

OURCEL. 

STER. 

.   TUPPER. 


PKOTOC^OL  XriT. 

MEETING   OF   FKIDAV,    APRIL   21.  1S0,3. 

The  Tribuuiil  assembled  at  IL.'JO,  all  the  ari)ilr;itors  bein,ir  present. 

iMi.  .biin"s  C.  (Jiirter  resumed  his  ar,yiHnent. 

At  l.;{0  the  Tribiiiiid  took  a  recess. 

On  reasseiiiitliny.  Mr.  Carter  continued  his  aro-ument. 

At  4  p.  m.  the  Tiiituiml  adjourned  till  Tuesibiy,  Ajuil  2.")tli,  at  ll..']0. 

Done  at  Paris,  tlie  21st  of  April,  1S1»;:,  and  signed: 

The  /■rexidiiil :  A  LITF.  ])E  COURCEU 

Tlie  Aijent  fi,r  Ihr  I'liiled  Slnh  s  :  -loiIN   \V.  J-'oSTEK. 

The  .\(i,nf  for  lire, it  Hiitniii  :  CltAKM.ES  II.  TUPPEB. 

The  Seeretiinj  :  A.    ImTJEKT. 

Trnnshition  certified  to  be  uccnnite: 
A.    liAI!,L^  Ulanciiari). 


M.   CUiWNGUAME, 


) 


CoiScnetork'S. 


PKOTOCOr.   XIV. 

MEPyriXG  OF   riESDAV.   Al'h'II,  2.".,   ISO.'?. 


The  Tribnniil  assembled  at  IL.'JO 


1.   111.,  all  the  iirbitrators    beinjj 


present  with  the  exce[)tion  of  Lord   Uauneii,  eoidined  to  his  house  by 
illness. 


L>ri 


PROTOCOLS. 


.Sir  Kicliiird  VVt-bstor  roso  and  stated  that  any  decision  of  tlic  Tri 
banal  as  to  a  susiHMision  of  its  labors  dnrin;i'  tlic,  time  necessary  to 
insure  tiie  (^oini>letc  recovery  of  Lord  Ilannen  would  be  in  accordance 
with  the  wislies  of  the  counsel  of  the  Britisli  Clovernnient. 

The  Honorable  E.  J.  IMielps  expressed  himself  to  tlic  same  effect  in 
the  name  of  the  counsel  of  tlu)  (lovernment  of  the  United  States. 

The  president  then  announced    that  the  Tribunal  had  de<:ided  to 
adjourn  until  Tuesday,  May  2nd,  at  ll.MO  a.  m. 

Done  at  Paris,  the  25th  of  April,  ISD.l,  ami  signed : 

Thr  I'rrxidriil  :   ALPII.  1)E  ConjCEL. 
The  Afinilforlhc  fiiiled  Stah's:  JolIN    VV.    I'oSTKK. 
The  Agvnt  for  Crial  lintain:   ClIAlir-KS  11.  Tiri'KK'. 
The  SecrcUinj :   A.  ImuEUT. 

Translation  certified  to  be  accurate: 


A.    BAILLV-P>LAX(MrAUI),   }  r^     .,         .       ■ 
U.  CUNVNGIIAME,  ) 


nU)T(H'()L  XV. 


MEE'l'IN(r   OF   TIESDAV,  :\IAY   2,  1X9^. 

Tlu'  Tribunal  assembled  at  1 1 .;!()  a.  m.,  all  the  arbi  tia  t<»rs  beinc:  present. 

Mr.  James  ('.  Carter  resumed  and  concluded   his  ar>;uinent  on  the 
matters  relating;"  to  rij>ht.    As  he  was  i)roctetliuy  to  deal  with  the  (pies 
tion  of  r(^jiulati(ms.  Sir  Charles  Russell  observed  that  the  counsel  of 
(Jreat  liiitain  would  in  the  discussion  keep  absolutely  separate  matters 
relatinji'  to  ri<»'ht  and  thos(>  relatinjj  to  re/^^ulations. 

The  president  recalled  tlu'  fact  that  the  Tribuiuil  had  decided,  wi  'i- 
out  prejudyiuj;'  the  question  of  rifi'ht,  to  };ive  to  counsel  on  each  side, 
who  had  a.yreed  upon  this  point,  full  liberty  to  arrange  their  arguments 
in  such  manner  as  they  thought  most  cfuivenient,  but  always,  as  far  as 
possible,  so  as  to  keej)  the  (pn ''tions  of  right  distinct  from  the  regu 
lations,  and  added  that  the  Tiiliinal  took  note  that  both  parties  had 
decided  to  defer  to  this  desire. 

At  1..S0  the  Tribunal  took  a  rt'cess. 

On  reassembling,  Mr.  Carter  finished  his  argument. 

At  .'{..">()  p.  m.  the  Tril)uiiHl  adjourned  till  the  lu'xt  day  at  11.30  a.  ni, 

Done  at  Paris,  the  2nd  of  May,  KStK},  and  signed: 

The.  I'rexident :    ALPII.   DE   CcURCEL. 
The  Ageut  JW  the  I'uited  Slates;  JOIIN    \V.   FoSTEH. 
The  A(iei>l  for  Creat  Ihilain  :  ('IIAUI.KS    II.   TlU'l'EU, 
The  Seerelarii :    A.    IMUERT. 

Translation  certified  to  be  accurate: 

A.    liAlLLV-liLANCIIAllI),  )   .,     u         ,       • 
II.   (3UNYNUHAME,  ) 


ion  oC  t]i(i  Tii 
i  necessnrv  to 
in  accoidiiiico 

• 

same  effect  in 

1  States. 

1(1  decided  to 


COT'IJCEI.. 

I.  Tri'i'EK. 


l)ein,c:  present, 
unent  on  the 
witlitlie  (jues 
he  counsel  ot 
arate  matters 

lecided,  wi  'j 
on  each  side, 
iir  arguments 
ays,  as  far  as 
Din  tlic  reji'u 
1  [)arties  had 


at  11.30  a.  ni, 

□CURCEL. 

OS'THR. 

[.   TUI'I'EU. 


PROTOCOLS. 


PKOTocoL  xvr. 


27 


MERTING   OK   WEDNK.SDA V,  MAY  3,  1S93. 

Tlie  Trihunal   assembled  at   11.30  a.  m.,  all   the   arbitrators  Inking 

.|pl'CS('llt.  "^ 

V  Tlic  Honorable  .lolin  VV.  Foster  announced  that  in  a  very  short  time 
|ie  expected  to  b(^  able  to  deliver  to  the  mend)ei's  of  the  Tribunal  a 
^lioi  tliand  report,  revised  and  corrected,  of  Mr.  James  0,  Carter's 
lirj^nment,  as  coucliuled  the  jn-evious  day. 

i    i:p(.n  the  invitation  of  tlie  president,  Mr.  Frederick  IJ.  Coudert  then 
be,!; an  his  argument. 

At  1.30  the  Tribunal  took  a  recess. 

On  reassembling,  Mr.  ("ondert  continued  his  argument. 
At  4  ]}.  m.  the  Tribunal  adjourned  to  the  next  day  at  1 1.30  a.  ni. 
>    Done  at  Paris,  tiu?  3rd  of  May,  LS!>3,  and  signed: 

Thf  I'tcHidntl:  ALPII.  DE    CoTMiTEL. 

The  .i(/cHt/or  the  I'liilcd  SIuIch:  -loiIiX   W.  FoSIKU. 

Thr  .hicntfor  (liral  lliilaiii  :  ('lIARLES    Il.Tui'l'EK. 

Thr  .S(ciel(i)-!j  ;  A.  ImISERT. 

Translati<in  certilied  to  be  accurate: 


A.  ilAIt.LY-l5LA\("IIARD,  /    .,     ,,         ,      . 
11.  CUNYNGIIAME,  )  ^^^-^''<^>-'f»''^<^S. 


PKOTocoL  xvn. 

MEETINO   OK   T1IURS1)A^,    :\IAY   4,    1S03. 

Tlie  Tribu.Mil  assembled  at  11.30  a.   m.,  all    the  arbitrators  bein- 

picsenr. 

Mr.  Frederick  b'.  Cimdert  resumed  his  argunu'nt  of  the  precu-diu"' dav 
At  1.30  the  Tiibunal  took  a  recess.  " 

<  >ii  reassembling.  .Mr.  Coudert  continued  his  argument. 
A I  4  p.  m.  the  Tribunal  adjourned  to  the  next  <biy  at  11.30  a  m 
l><'iie  at  Faris,  the  4th  <.f  May,  1.S03,  and  sigiu-d: 

Thf  I'rrxiileiit:    Al,l>ir.    DE   Coi  RCEE. 
The  Ji/cnt  for  the  I  nitid  Slaleg:   foil's    W.    l''(»STER. 
The  Aijeut  for  Cretit  liiiUiin  :   CHAKI,ES    II.   TUPPER. 
The  Srrrvtury :   A.    IMHERT. 

Translation  certified  to  be  accurate: 

A.    F.AII,LVU|,AN(1IAR1),  \  ,,     ,, 


m 


HH 


28 


PROTOCOLS. 


nu)TO(;()L  xviiT. 

■Rrr-KTING   OF  lUIDAY,  MAY  5,  1893. 

Tlio  Tiihiiiiiil  i\ss<'inl)k'(l  at  11.30  a.  in.,  all  the  arbitrotors  bcinj: 
1)  re  sent. 

Mr.  Fredorick  It.  Coudert  resumed  his  arjiiinient. 

At  1.30  the  Tribunal  took  a  re(;ess. 

On  reasseniblinf;-,  Mr.  Oondert  continued  his  argument. 

At  4  p.  m.  the  Tribunal  adjourned  until  Tuesday,  May  0th,  at  ll..".ii 
a.  ni. 

Done  at  Paris,  the  nth  of  May,  1S!).'5,  and  sij^ned: 

The  I'lCHident:  ALPH,  DE  CoUKfEL. 

The  Ayvnt  for  the  Uuilcd  States :  JoHN   W.  FOS'I'EH. 

The  AyvHt  for  Great  Britain:  ClIAKLKS    II.  TuiTrili. 

The  Secretary :  A.  IMIIEUT. 
Translation  certified  to  be  accurate: 

'  •  to-Snrei fines. 
11.  CUNVNCillAME,  ) 


ntOTOCOL   XTX. 

MEETIXCr  OF  TUESDAY,   :\IAV  0,   1S03. 

The  Tiibunal  assembled  at  11..30  a.  m.,  all  the  arbitrators  beinj;' 
,l)res(Mit. 

Mr.  Frederick  R.  Coudert  resumed  his  arj;unient. 

At  1.30  the  Tribunal  took  a  recess. 

On  reasscmbliuf;-,  Mr.  Coudert  concluded  his  arji>iimcnt. 

The  Honorable  Fdward  J.  Phelps  rose  toinlorm  the  Tribunal, before 
the  counsel  of  (Ireat  IJritaiu  commenced  their  aryunuMit,  that  in  his 
reply  he  would  rely  upon  all  the  authorities  and  points  referred  to 
between  pages  130  and  100  of  the  printed  argument  of  the  United 
States. 

The  i)resident  said  that  the  Tribuiuil  would  take  note  of  the  Honor 
able  Edward  .1.  Phelps's  declaration. 

At  4  ]).  in.  the  Tribunal  adjourned  to  the  next  day  at  11.30  a.  m. 

Done  at  Paris,  the  9th  of  May,  1893,  and  signed: 

The  I'rvsideiil:   ALFIT.  DE  CoTTRCEL. 
The  Afient  for  the  Vvitvd  Staten:  JOIIX  W.    FoSTER. 
The  Aijent  for  (ireat  Britain:  ChAULES   IT.   TUPFER. 
The  Secretary  :   A.   IMIIERT, 

Translation  cert; lied  to  be  accurate: 


A.   HA.LLV  HI.ANCIIARI),  )  c^o.,sto/.(r/c«. 
LI.  CUNVN(JIIA1ME,  ) 


PUOTOCOLS. 


2f) 


IS 


PROTOCOL  XX. 

MEKTING^   OF    WEDNESDAY,   MAY    10,   ISOH. 

The  Tribiiiiiil  assembled  sit  11.30  a.  m.,  all  the  arbitrators  being 
1  (resent. 

Tlie  afient  of  the  United  Stiites  caused  to  be  <lelivere(l  to  tlie  mem- 
bers of  the  Tribunal  a  shorthand  report,  revised  and  corrected,  of  Mr. 
James  C.  Carter's  argument. 

Upon  the  invitation  of  the  president,  Sir  Charle.s  Ivussell  be.ijfan 
arj:iiment  for  Great  Britain. 

At  1.30  the  Tribunal  took  a  recess. 

On  rcassemblinjj,  Sir  Charles  Russell  contiuue<l  his  argument. 

At  4  J),  m.  the  Tribunal  adjourned  to  the  next  day  at  11.30  a.  m. 

Done  at  Paris,  the  lOtii  of  May,  18!>3,  and  signed: 

Thf.  I'teaident :   ALPII.  1>E  CoUEOEL. 
The  Ayciit  for  (hi'  United  States:  JoiIX  W.  FOSTER. 
The  Agent  for  a nat   Ihitain:  ClIAKLES  II.  Turi'El 
The  Scrretari/:   A.  1M15EUT. 

Translation  certified  to  be  accurate: 

A.  Bailey  JJLANcnAiiD,  )  .,    .,      ,     ■ 

11.  CUIS'VIS'UIIAME,  ) 


rators  being 


PROTOCOL  XXL 

meeting    of   TIIIKSDAY,   INIAY   11,  1803. 

Tlie  Tribunal  assembled  at  11.30  a.  m.,  all  the  arbitrators  being 
present. 

Sir  Charles  Russell,  iu  continuing  his  argument,  announced  that  on  a 
future  day  he  would  i  nbmit  on  the  part  of  Great  Rritaiii  a  list  of  the 
llndings  of  facts  which  the  Tribunal  was  requested  to  make  under 
Section  VIII  of  the  Treaty  of  Arbitration. 

The  president  remarked  that  these  (piestions  would  be  considered  by 
tlie  Tribunal,  with  full  liberty  for  Sir  Charles  Russell  to  deal  with  the 
mutter  as  he  thought  proper. 

At  1.30  the  Tribunal  took  a  recess. 

On  reassembling.  Sir  Charles  Russell  continued  his  argument. 

The  Tribunal  adjourned  at  4  ]>.  ni.  till  11.30  tiui  next  day. 

Done  at  Paris,  the  11th  of  May,  180.'>,  and  signetl: 

The  I'resident:  ALPII.  DE  CoURCEL. 

The  Ayeiil  for  the  I'nited  Slutea:  JoiIN  ^^'.  FOSTEU. 

The  Agent  for  (Irvol  liritain  :  ClIAK'LKS    11.  TlPPER. 

The  .Secretary;  A.    IJlliEUT. 

Translation  eertiiied  to  be  accurate: 

A.  liAlLEY-IiLANClIAllD,  >   .,     o         <      ■    . 
H.  CUNYNGUAME,  i 


'2r 


30    . 


PROTOCOLS. 


rUOTOCOL   XXII. 

MEETIN'iJ   OF   J'ltlDAY,  MAV   1L\  1.S93. 

The  Trilmiiul  jisscmblcd   at    ll.;5(>  u.  iii.,  all  tlu;  arbitrators  boiiit; 
pipsciit. 

Sir  (!liarle.s  Riissoll  n'suiiit'd  his  arguineiit. 

At  1.30  the  Tiibtiiial  took  areiiess. 

On  reassembliiif'-,  Sir  (31iarles  Russell  eontiiined  his  arHUinent. 

At  4  p.  m.  theTribuiial  adjourned  until  Tuesday,  May  Ki,  at  ll..')Oa.  ni. 

Done  at  Paris,  the  12th  of^May,  ISD.'J,  and  signed: 

The  I'rvKidtnt:   ALIMI.  DE  (Joi'HOEL. 
The  Aijent  for  the  United  Staten  :  .lOIlN  W.  FOSTER. 
TheAyent  for  Grcal  llritaiu  :   GhAHI^KS  II.  TuiTER. 
The  Sicrelurii :   A.  iMliEUT. 

Transhition  eertitied  to  be  aecurate: 


A.  BAIM.Y  liLANCUJAin),  )  f,     .,         ,      • 

..    ,.  '     Co-Sccrcidyii'S. 

U.  CUNVNGIIAME,  S 


PROTOCOL  XXIII. 

MEETINO  or  Tir.SDAY,  :\IAV    1(!,  1S03. 

The  Tribunal  assembled  at  ll.JJO  a.  m.,  all  the  arbitrators  bcini: 
[•resent. 
Sir  {/harles  Knssell  resumed  his  arfiimient. 
At  1.30  the  Tribunal  took  a  recess. 

On  reassend)linj;',  Sir  Charles  Hiissell  continued  his  arjiument. 
At  4  p.  m.  the  Tribunal  adjourned  till  11.30  a.  m.  the  next  day. 
Done  at  Paris,  the  Kith  of  .May,  1S!>3,  and  sijjned: 

The  I'resUkni:  ALPII.  UE  COURCEL. 

The  Afiviit  for  the  LuUid  SUihn :  JOIIN  W.  FOSTEK. 

The  AyenI  ford  real  Urilaiii :  CHARLES  II.  TuiTEU. 

The  Sccrcluri/:  A.  IMBERT. 

Translation  certified  to  be  accurate: 

A.  Hailly-Blanciiard,  )  /,    c,       ,     •  „ 

11.  CUNYNGIIAME,  ) 


PROTOCOL  XXIV. 

MEETIN(J    OK   WE1)NKSI)AY%   MAY'    17,   1S03. 

The  Tribunal  assembled  at  11.30  a.  m.,  all   the  arbitrators   bcinj 
present. 
Sir  (-Charles  Kussell  resumed  his  arfjumout. 
At  1..30  the  Tribunal  took  a  recess. 


itrators  boini; 


UOFHCEL. 
^()8TER. 

II.  TurrEii. 


PKOTOCOL8. 


31 


On  iTiissciiil)liir--,  Sir  (MiiiiU's  UnssvW  contimu'd  his  iir,mimciir. 
At  ;<.l(>  I*.  Ml.  the  Tiibiiiiiil  iuljouincil  until  Tuesday,  Ahty  I'.Jnl,  IS!),", 
ill  Il.;iOa.  ni.  ■  "  ' 

Done  at  Taiis,  tiie  ITtb  oi'  iMay,  189;},  and  sisnod: 

The  I'lrniditit :   Af^l'II.  I)H   CoUKCKL. 
The  Aijvul  for  Ihv  i'lnU'd  Slulcn:   ,Ioil.\    W.   I'oS'l'EK. 

Tlw  .1(1(1,1  i)>r  Creut  nrilahi:    (^HAIi'LKS    II.   TuPl'Eir. 
Tlir  >V<T(7<( (•//••   A.    IMIJEIIT. 

Translation  ceititicd  to  be-acciiiate: 

A.   15AII-LV   r>Iw\NCII.\IM),    ) 


II.  CUNVN(ilIAME, 


) 


CoSivrchirics. 


PL'OTOCOL  XXV. 

MEKTJNC    Ol'   TUESDAY,   MAY   L'.'i,    1S!K{. 


ti'at(u\s  bcini: 


Tlie  Tribuind  assembled  at   11. .'.O 

|il(  sent. 


a.  III.,  all  the  arbitrators  beini 


Sir  CliarJes  Kussell  resumed  his  arniiment. 

At  l.;}()  the  Tribunal  look  a  recess. 

On  reassemblinji',  Sir  (Charles  Kussell  coutiuued  his  aroument. 

At  1  ]).  III.  the  Tribunal  adjonriied  to  the  next  day  at  il.;;o 


Done  at  Paris,  tlu'  2:Ud  of  .-May,  1893,  and  signed 


a.  ni. 


The  PreMdcnt :   Alph.   DE  COURCIOL. 

The  .Ificnt  for  the  Viiilcd  Slates:   JoiIN   W.    FoSTKR. 
Tha  J(/ciit  for  a  real  Britain:   ClIAIlLES   II.   TurPKIl 
The  Sccrvlary:   A.   ImBKHT. 


Translation  certified  to  be  accurate 


A.  IUilly[5lancii 
11.  Cumyxoiiame, 


\iii). 


Co-iSrmfarics. 


trators   beim 


PKOTOCOL  XXVI. 

MEE'lINC    OF    MKDMCSDAV,    MAY   21,   18!);{. 

The  Tribunal   assembled  at  U.M  a.  m.,  all  the  arbitrators  beiim 

present. 

Sir  Charles  Kussell  r<'suined  his  arj;iiment. 

At  1.30  the  Tribunal  took  a  recess. 

On  reassembling,  Sir  (Jharles  Kussell  continued  his  aryumeut. 


32 


PROTOCOLS. 


At  4  i>,  in.  tlie  Ti'il>uiiiil  iidjiMirncd  to  the.  next  flay  iit  ll..'U)  a.  in. 
JJoiic  at  I'aiis,  the  I'Uli  of  May,  l<St>;»,  and  signed: 

The  I'nMvul:   AHMF.   DK  COUUCEL. 
The  .lycntfur  llir  Ciiited  Stalfx:  J(»riN   W.    FoSTEU. 
Thv  .hjcntfnr  dmil  I!,it,iin:   ('irA.in.KS    II.  TUPI'EU. 
The  Sccnhuij  :   A.    ImHEUT. 

Translation  certilicd  to  b(^  accurato: 

A.   J5AILLY  I>LAN("llAliD,  )  /,     .,         ,      • 
II.   CUNVNUIIAME,  ) 


rifoTocoL  xxvir. 

i\ii'j;riN(i  OF   rini{S!).\ V,  may  LM,  !S9.'5, 

The  Tiibnual    assembled    at   ll..'U)   a.  ni.,  all   tiic  arbitiators  bciny 
I>l•(^sellt. 
Sir  Charles  liiisscll  resumed  his  arsumeut. 
At  I. .'50  the  Tribunal  took  a  r«M('ss. 

On  reassemblin.u",  Sir  Charles  llussell  continued  his  argument. 
At  4  p.  ni.  tiie  Trilxinal  adjourned  to  the  next  <lay  at  11.30  a.  m. 
Done  at  Paris,  the  -."ith  of  May,  ISit;},  and  sif>ned: 

The  I'rvxUknt :  AM'H.   DF.   CoURCEL. 

The  Aficiit  for  the  Ciiiled  Stalex  :  JoiIN   W.   FOSTKR. 

The  Ayeiil  for  Great  lirilain:  ClIARI.FS    II.  Tui'l'ER. 

The  Seiretiirii:  A.   IMUKRT. 

Translation  e(>rtilled  to  bo  aeeurate: 

A.    r>AILLV-l>l.ANCIIARI),  )   ^,     o         4      ■ 
11.   CU-NV-XUIIAME,  ) 


PKOTOCOl.  XXVJII. 

]MEETlN(i    OF    FltlDAV,   :\IAY  2(>,  1S!)3. 

Tiie  Tribunal  assembled  at  ll..'{l)  a.  m.,  all  the  arl>itrators  being 
present.  , 

Sir  Charles  Kussell  resumed  his  argument. 

At  1.30  the  Tribunal  took  a  recess. 

On  reassend)ling,  Sir  Charles  Russell  continued  his  argument. 

At  4  ]).  m.  tin;  Tribunal  a<lJourned  until  Tuesday,  May  30th,  at  11.30 
a.  m. 

Done  at  I'aris,  the  20th  of  JNlay,  1S!)3,  aud  signed: 

The  I'remdeiil:    AlI'II.   1)E   CoURCEL. 
The  .l<i<iitfor  the  L'liited  >itales:   JoiIN    W.   Fo«TER. 
The  Aijent  for  (.rent  liritatn:   ClIAKLF.S   H.  TUI'PER. 

The  Srnrlari):   A.   IMIJEUT. 
Translation  certilied  to  be  accurate'.: 

A.    liAlLLY-Hl.ANOIIAUl),  }  . ,     ..         , 
II.   CUIVYIS'GUAME,  ) 


rROTocor.a. 


33 


itors  beinj' 


PROTOCOL  wrx:. 

MKETIM}   OF   IMKhiDAV,  MAY  .!(>,  1S0.^. 

Till'  Tiibiiinvl  assembled   at   ll.oO   a.   in.,  all  the  arbitrators  being 
present. 
Sir  (Jliarles  Ifiissell  resumed  his  arj^nment. 
At  l..")(>  tlie  Tribunal  took  a  reeess. 

On  reiisseinblinji',  Sir  Charles  Hussell  coiitiiuied  his  ar^iiiment. 
At  I  p.  m.  the  Tribunal  adjonriu'd  t(»  the  next  (biy  at  11. .{(t  a.m. 
Done  at  I'aris,  the  .'iOth  of  May,  IS!*;},  and  signed: 

The  I'rrsiil,;,! :    Al.PII.    I)K   Coi'IfCIX. 
The  .lijiiil  for  the  CiiiUd  Sldlin  :   doiIN    W.    F()STKI{. 
The  Ayvnt  for  Crmt  lintuin:   C 11  AIM, lis    II.   Tl  i'l'KIl. 
Till-  Sirnldr;/:    A.    iMlJIOliT. 

Translation  certided  to  be  aee^irate: 


A.    r>Al[,LV-iil.AN('lIAUD,  }   .^     .,         ,      . 
U.  CUNVNGIIAME,  ) 


tors  beinjj 


PKOTOC    L  \XX. 
MEETIN(t  of   ^Vl;l)NESI)AY,  MAY  .'51.  1S0.3. 

The  Tribunal  assend)led  at  W.'M)  a.  in.,  all  tlu^  arbitrators  beinj^ 
present. 

Sir  (.'harles  Russell,  in  eontiimation  of  his  ar;;iime!it,  presented  to 
the  Tribunal  the  follo\vin{>'  puixr: 

Tlie  I'>ritish  (iovernmcnt  havinj;-  submitted  to  tlie  arbitrators  certain 
(pu'stions  of  faet  as  involved  in  the  ehiinis  for  diimauc!  set  ibrth  in  the 
schedule  to  the  liritish  ease,  pages  1  to  (10,  inclusive,  ask  for  (he  ibl- 
liiwiuii'  Inidings  (hereon,  luiinely: 

1.  That  the  several  searches  and  seizures,  whether  of  ships  or  gnoils, 
and  the  .several  arrests  of  masters  and  crews,  respectively,  mentioned 
ill  the  said  schedule,  were  made  by  the  authority  of  the  United  States 
Coveriiineiit. 

-.  That  they  were  made  in  non-territorial  waters. 

•'?.  That  the  several  searches,  sei/uies,  eondeninations,  and  eontlsca- 
tioiis,  whether  of  ships  or  f>oods,  and  the  s<'\eral  arrests,  lines,  and 
iiiil)iis(»nmeiits,  were  for  alle.ned  lu'caches  of  niuiiici|)al  laws  of  the 
I  iiited  States,  which  alleged  breaches  were  wholly  committed  on  the 
high  seas  outside  the  territorial  waters  of  the  United  States. 

I.  That  the  several  orders  mentioned  in  the  said  schetlule,  whereby 
ships  were  prevented  from  pursuing  their  voyages,  were  given  on  the 
high  seas  outside  territorial  waters,  under  the  authority  of  tlu^  United 
States  Ciovernment  and  in  execution  of  the  municipal  laws  of  the 
United  States;  and 

B  S— VOL  I 3 


31 


Pi{()Toror-s. 


$\ 


r».  That  (he  siiid  scvcnil  sciiiclics,  s<'i/,iii'«\s,  «'oii(1(Miiiiiiti(His,  roiifi.scii- 
tiuiis,  liiM's,  iiii|ii-isi)iiiiiciils,  and  onlt-is  weru  not  made,  imposed,  <>i' 
;;iv»'ii  under  any  elaiiii  or  asseitioii  of  li^lit  or  jurisdiction,  except  sucli 
as  is  snlnnitted  to  tlie  decision  ol"  the  arbitrators  by  the  qiiestioiiH  in 
Aiticlc  \1  of  tiie  Treaty  of  Arl»itiiition. 

Sir  Charles  Uiissell  liirlhei-  announced  that  (Ireat  Ihitain  wouhl  ii<»t 
ask  tlie  'I'ribnnal  lor  any  lindin.!^-  for  <hinni,ii<'s  upon  aud  under  article.', 
of  tiie  coMvention  oi-  iinxhis  riniiili  of  April  IS,  ISU'2. 

The  llonorsible  Kdward  .1.  I'helps  announced  that  the  United  States 
would  not,  on  its  behalf,  ask  the  Trilxinal  for  any  finding  for  dania<>'es 
up(»n  and  under  articU;  5  of  the  convention  or  wtO(?Hi(  t'/rfc'/«^/t  of  April 
bS,  bSltl'. 

Sii(MiarIes  IJussell  tlu^n  concbided  his  ar;;uinent. 

Sir  Kiihai'd  Webster  then  coninienced  his  argument  on  behalf  ol 
(Jreat  Ibilaiii. 

At  l..".(t  the  Tribunal  toidc  a  recess. ' 

On  reassend)lin;;',  Sir  l\ich;ird  Webstei' continued  his  argument. 

At  4  p.  ni.  the  Tribunal  ad.i<»urned  to  the  irext  day  at  11..JU  a.  m. 

Done  at  I'aiis,  the  ."Jlst  of  .May,  1S!K>,  an<l  sijuned: 

Thv  I'rvmlnii :  A1.IMI.   1)10   Coi'llfEL. 
The  .i<i(iilfi>r  Ihr  Ciiilnl  Sliitix;    .JoUiN    \\ .    FoSTHll. 
Thv  Aijinifor  Crritl  lUUuin:   ClIAKLKS    II.   Turi'ER. 
Thr  Srvrclary:  A.   iMUlillT. 

Tianslntiou  certilicd  to  be  accurate: 

'     <  If  tSart'htnts. 
11.   Cl  N\.N(JnAMK,  ) 


PI J()T( )('()!.  XX XL 


i\iin;riN(i  oi'  TiiritsDAv,  jink  1,1803. 

The  TribuiKil  assembled  at   11.30  a.  in.,  all    the  arbitrators  beinj; 
l>reseiit. 

Sir  b'ieliard  Webster  resumed  his  argument. 

At  I..')0  the  Tribunal  t(»ok  a  recess. 

On  nasscinblinj;'.  Sir  Richard  Webster  continued  his  argninent. 

At  1  \K  m.  the  Tribunal  adjourned  to  the  next  day  at  11.30  a.  m. 

Done  at  Paris,  the  1st  of  -June,  1S03,  and  signed: 

The  I'lenident :   A L I'll.  DK  COUHOEL. 
The  Aijnitfor  the  Unilal  Slatrx:   .ToilN   W.  FOSTEII. 
The  A,j<nl  for  (;r,(tl  r.rilahi:   ClIARLES   H.   TUITEB. 
TlicSccyelury:    A.   1M15EKT. 

Translation  certilicd  to  be  accurate: 

A.  15AlLLVi)J-A-NC'IIAKl),  )    .,      ,,  ,     ..„ 

'  ;  to-nicrclancs, 
11.  CL^'v^aIIAJlE,  ) 


I'lInl'OCOLS. 


35 


vn<li  of  Ajtril 


t)ii  behalf  <»l 


1M{(>T(H()I.   WXII. 

:\ii;i;i  iN(i  «»i'  i'uii)A\,  .mm:  l',  1.si»;5. 

The  frildiiiiil  iisscmlilcd  ;it  1 1. ■'»(>,  nil  tlic  ;iilii( lators  l»t'iii<;  present. 

Sir  i;icli:ir<l  Welt -iter  rcsiiiiicd  liis  ;ir.uiiiMeiil. 

At  l..">(l  tlic 'rrilniiial  toitU  a  recess. 

On  rcasst'Mililinjn,  Sir  Ivieliard  \\\l>s(<  r  ('(nilinutMl  liis  iir;niiineiit. 

At  (  |i.  III.  the 'ri'iltmial  ailjoiiinctl  until  Tuesday ,  June  (itii,  at   ll.-'iO 

ill. 

Dune  at  Paris,  the  Jinl  dI  -Innc,  is'.i;!,  and  sij;iie(l: 

Tin    fn^iihiit:    ALI'II.    DI;   CnriM'I'.l,. 

Till  .iiidii j'nr  tiir  I  iiitcii  sittii^:  'Unis  \V.  l''os'i'i;i;. 

I  III  .li/iiil  fnr  (,1-inl  IliUaii,:   ( 'll  A  IJ  l.i;S    II.   Turi'EU. 
riw  Sr,nl(H-!i:    A.    I.MIJKliX. 
riaiislatimi  eeitilicd  to  l»(^  accurate: 

A.    BAII,I.\ -Ul.AM'llAIM).  /    .,      ^.  ,       • 

..    ,.  CO  iSi  CI  claries. 

II.  CUA\M.llA.Mi;,  ) 


liitors  beiny 


PROTOCOL  XWIII. 

]Mi;i:nMN(i  HI'  Ti];si>A\ ,  .ir.NK  <»,  1S!)3. 
The  'rrihmial    assciiiliicii   at.   1  !..'}(>  a.  in.,  all   the   aibitra<oi's  beiiij;- 

IlK'SCllt. 

II.  i;.  M.  (iraiii,  the  aihitrator  desij^iiated  by  Sweden  and  Xorway, 

read  the  l'oilo\vin,y  stau'incnl  : 

Tlic  \|>|ii'ii(li\  N'uliiiiii'  I  ti)  llii-  t'liitt'il  Sliitc's  ciisd  f;ivfs  tli(!  text  of  liii'  Iiiw  ;ili(l 
ic-uiihil  inns  rcl.itin;;'  lo  tlic  inolicl  ion  of  wli.ilis  on  (lie  coiisl, ol'  I'liiiniiiu'loni.  It  wiis 
iii>  iiilriilioii  lalor  <iii  to  c\|il;uii  lo  my  collfa^iirs  tlicsc  jawh  atiil  ic;;iiliilion.s  in 
Mi|i|ilyiii'4'  some  iiil'onii:ition  alioiU  tlir  natural  coiiililioiis  «('  Norway  and  Sweden 
uliirli  lia\c  nrci'ssitated  the  establlsliment  of  soccial  niir>  conreniinjn;  tln'  territoiiiil 
w.iii  IS,  and  to  .stat<i  at  the  same  time  my  ojiinion  as  to  w  lid  her  those  rules  and  their 
>iilijcct-inallir  may  lie  considered  as  haviiij;'  any  licirinn  upon  Ihi;  incsfiit  ease.  Ah, 
liiiwever,  in  the  latest  sitt iiiji's  reference  has  repeatedly  lieen  made  to  the  Norwej^jiaii 
ieuisjation  conccrninii  this  matter,  I  think  it  mi!;lit  he  of  some  use  at  thcpresimt 
jinic'tuie  to  i^iv  (•  a  very  hrief  relation  ol'ihe  h-adiiiL:  feat  iires  of  those  rules. 

I  he  jieciiliarity  of  the  \oruoi;iau  !a  ,.  qnoleil  hy  the  counsel  for  Iho  IJnittid  States 
iiiii.>isis  in  its  judvidiiiu,'  for  a.  (dose  season  for  the  what  in.i;;.  As  to  its  stipniat  ions 
iiliiiiii  inner  and  lerritnial  waters,  such  stiimlatioiis  ar<'-  simply  applieations  to  a 
spi'iial  ease  of  the  ;;eneral  principles  laid  down  in  the  Norwei;ian  lej^islatiou  eoii- 
eiiiiiiin-  'he  ifiilfs  ami  the  svaters  vvasjiiiii;  the  coasts.  A  elanee  on  tlii!  map  will 
I'e  ^iillliient  to  show  the  ureat  niiiiilier  ot  ;;iilfs  or  liords  ;ind  their  impoitaiieo  for  the 
ii  h  r.iilants  of  Norway.  Some  of  thc^o  tiords  have  a  consideralde  development, 
>iiii'  hiiiii'  themsehes  far  iido  the  coini'try  and  lieini;  jit  their  month  very  wi(U). 
Ne\  el  Ihele-s,  t  Iwy  lia\e  hoeii  from  time  immemoriiil  c<msidered  as  inner  waters,  and 
Iliis  priiieiple  has  always  l)een  maintained,  even  as  Hf^ainst  foreie;n  subjects. 

More  than  twiMity  yt?ars  ago  a  fi'A'i'ign  (iovernmont  once  complained  tliiit  a  vessel 
ol  their  uatiouaHty  had  been  j/reveutod  from  lishiug  in  ouo  ol"  the  largest  liords  of 


36 


riJoTocoIS. 


Norvvny,  in  thfl  nnrlluMii  piiit  of  tin-  cKHiitiy.  I'lui  (i-.liiii;;  carrioil  on  in  tluit  ih'IkIi- 
IxiI'IkkmI  (Inriiij;  Hn«  lirHt  four  iiioiitli-i  of  m'cry  year  i-i  of  cAtriiiinliiiMiy  iiii|><ii't:iiii'<< 
to  tlio  romitry,  sniMi' 311,001)  pi-diili-  natlicrin^  tli'Ti'  fimii  ■.oiilli  :iiii|  iinrlli,  iiioidir 
to  t'lini  llii'ir  liviii;,'.  .V  (iciviMiiiin'iit  iii-tn'i'iioii  ciiiitrKls  I  ii  •  lisli  in;;  K"'";I  '"'  i"  """ 
wjitiTH  of  tin^  fionl,  sli 'Uorivl  l>y  sv  r.m;.'  of  i-lii  !•«  ii\;iiin-it  tiin  vIoIimhh  of  tin-  Hen, 

'I'lm  ilpllnill'Mtli'i'  in  I  lltlH  '  WMtiTS  of  il  fi>ri)i;;il  vr-sol  |ll'0|i!Milinir  ti  tllkn  itn  hIiiii(>  nf  tlli- 
llNliin;;  \V!IS  ill)  II II  lio  I  I'll  of  MfiMirriMIco,  iltl'l  ill   tlir  I'llHiiin^  iIl|iloill;il  ir  I'dl  rrH|i<iiiili'li(  r 

tlm  exi'liisivc  riylif  cif  N.irwci;!  i  i  -^  il)jfc'ti  to  tiiis  iiilii-.iry  \v,i-»  iiirr;;i  ij  nlly  iii>isi,i'il 
upon  iiH  foiitiih'il  ill  iiiiiiii'iiiiiri:il  iumiI  iro, 

cr  ri'-'ii'>ni/<Ml  I  lie  |iir.i'  mil  is  limii  as  iIutoii- 


l!t'si(l("..  Norv 


(IS 


Allien  li,i\i!  ih'V 


fines  of  their  leriitiiri;il  w.itei- 


i'liev  li.'ive   iicitlier  iiiiiclirli 


nor  iie'i 


ileil  ti: 


treaiN  eoiisecr.ii  iii>^  tliat  rule.      It\   I  lieir  iniiniei|ial  i.iw  s  I  he  limit  h.is  t^eiierall\  lieeii 
lixeil  at  1  eeiii^iapilieal  mile,  or  one  fifteen tll  part  of  a  ilei;lre  of  lal  il  mle,  or   I   lllirilie 


HUM'S,  no  lurrower 


it    h 


•r  1 


teen     ailojili 


III    fart,    in   ri'ianl    to  ih 


<in('Htion  of  the  lisliini;'  ri^hls,  so  iin|iniiaiit  to  lioili  of  the  I'niieil  KiiiLjiloiim.  the 
Haiil  liinitH  have  in  inan.v  in-itaaees  heen  foiiml  to  lie  oxen  ton  imrrow.  As  to  this 
i|iiestion  anil  others  therewith  eoiiiu'ete  I.  I  hi".;  to  refer  to  the  rniiimii iiirat imis  pre- 
WMiteil  liy  tlio  N'orwenfiiiii  ami  Sweilisli  ineinhers  in  the  sit  I  iiiLi^  nf  I  he  hut  tut  ih  Ihn'il 
Iiilrriialioiiitl  in  ISIM  ami  1M.I2.  I  wish  also  to  refer,  eom  einiiiM  ilie  .snlijei  t  whieh  I 
have  now  very  hrielly  treite'l,  to  the  ]iroeceilinv;s  of  the  confereiiee  of  llauiii 
1HH2  {  .\tiirleiiK.  \'iiini  lilt  llcciiril  i/i'ii  nil,  11    si'rir.    riilinnf  I  .\  ), 


III 


roni  .illlllli;  lll<^    I'easuns 
why  Sweden  anil  Norway  Inve  nut  ailhereil  to  the  treaty  of  lla^iie. 

The  president  ft'i|H('stril  lli;it  coiiiisel  on  bolli  sides  wniild  hear  in 
mind  the  ohseiNatinns  oi'  11.  M.  M.  (Irani,  in  case  tliey  I'oniid  it  neces- 
siiry  to  cltei  the  example  of  the  wateis  of  Norway,  Init  thoii<;lit  it  his 
duty  to  remind  them  that  tlie  (nic  timi  of  the  deliiiition  of  teriitoi  ial 
waters  was  not  submit ti'd  to  tiie  aihitratnis,  and  that  it  was  not  tiie 
intention  (»f  the  Tribunal  to  e.\itn'ss  any  oiiinion  with  res[)ect  to  thiit 
delinition. 

8ir  liichard  Welister  then  resuiin'd  his  ar,i;iuntMit. 

At  l,'-W  the  Tiilninal  took  a  reeess. 

On  reasseinblinn.  Sir  Hichard  Webster  enntimied  his  arfiUinont. 

At  4  p.  111.  the  Tribunal  aiijoiiriied  to  the  iie\t  day  at  IL.'JO  a.  in. 

Done  lit  Paris,  the  (Uh  of  •liiiic.  ISil."..  ami  sjoiicd: 


jhr  r 


idciil : 


Ai.i'ir.  Di;  Corijci;!. 


Th 


e  A<jrilt  for  tlir 


I'liilcil  Shilc^:    dolIN   \V.  FONTinj 


Tin 


ir  Ciia 


I   I! 


CllAin.KS  II.TUI'I'EU. 


The  Sirnhini :    A.   I.MlJiaM'. 


Translation  ecrtiliod  to  be  aeemate 

A.  I5An,I,Y-lJr, ANCIIAIM),   I 


H.  Oi'MV.\(ii[A;\iJ:: 


Sirnfiii'ics. 


l'IM)T()('()L  XXXIV. 
MEirnxd  oi'  wi;i)NKsi)AV.  ,ium:  7.  ]S03. 

The  Tribunal  assembled   al    11. .'50  a.   iii..  ail   the   arbitnitors   beiii.i;' 
present. 

iSir  liichard  Webster  resumed  and  concluded  his  aroiuiiuut. 
Mr.  Christoi)hor  Kobinsou  tlicii  began  his  aryiinieut. 


I'K'o'l'ocoi.S. 


37 


I  tliiit  nrif^li- 

iiii|><irt:mrt< 

II li,  ill  (>i ili'i' 

injr  oM  ill  till" 
t«  (if  tlir  Hi'il. 
,  kIimk-  oI  tlic 
TrHliiiiiilclHc 
illly  ili'isli'il 

lit  ilH  tlll'fOH- 

rcilcil  td  liny 
Micriill.v  llcCM 
>,  i)v  1  iiiiiini- 
•■rani  to  llii^ 
inL;il"ni>.  till' 
.  Ah  I«»  tliis 
niiatimis  |iri>- 
.stlitl  il>  I'niil 

lljci  t    NNllil'll    I 

of  llfi^iii',  ill 
M  tlio    reasons 

iiild  liciU'  in 
ml  il  ncccs- 
oiifjlit  il  liis 
if  tcnitoiiiil 
was  )i(»t  tlic 

|l(.'('t   to  tllilt 


At  l..'M>  lilt'  Tiilniiial  took  a  it-rcss. 

Oil  rfassciiibliiio.  Mr.  Ikohiiisoii  continiicil  liis  arofiiiiiciit. 

At  1  p.  111.  tlu'  Tiihiiiial  adjoiinicd  to  tin-  next  day  at  1 1  o'cloik. 

Done  at  I*  iris,  tlic!  Ttli  of  .liiiic.  lsi»;',,  and  si;;iicd  : 

//(.    I'l;  .iJnil:  Al.i'll.   UK  (Joi   IM'l",!,. 

The  .l;inilfi,r  llir  I  iiil,(l  .^l.ilrs :  .JolIN    U'.    l'»  »S'ri',l;. 

Till!  .li/riil  for  (iniit  lliiluiii  :  ClIAIIMlS  II.  Tri'l'Klt. 

rill  Sirrrlarii:  A.  ImUKUJ. 
Translation  ('(Mtilicd  to  he  accuralc: 

A.   llAIM.V  IlLANClIAUl),  I   ^ ,     ^. 
il.  CLMViNUIIAME,  ) 


iMforocoi.  WW. 

MKKTiN(t  or  nil  i;si)A\,  JINK  8,  1893. 

The  Tribunal  u.ssciiibk'd  in  tlic  council  cliaiiibcr  iit  11  o'clock,  all  the 
iibitiators  belli};'  present. 
The  public  sittiiij;'  coiiiiiMiiced  at  \'2  noon. 
,Mr.  C'hiistopher  liobinson  continued  and  linislied  liis  address. 
The  United  States  aycnt  then  ri-ad  the  tbllowiiiy  statement: 
'I'lii'  ( ;<ivi'riiiiiciit  of  tlio  I'liitcd  Slates,  in  the  cMiit   tlial  tlio  (it'torniinutioii  of  tl 


10 


liuii  Tiiliiinal  of  ciTtaiii  (jiicst  ions  ilrscrilx'il  in  tlu"  stncntli    iiticle  of  the  ticatv  as 


'I 
I  lie   lbici;()iiij;  i|H('slioiis  as 


to  tl 


If  fxilnsix  o    iiirisdiction   ol'  the   I  iiitcd  Stall's' 


>li(iul(l,  as  incnlioiicd  in  said  seven  111  aitick-,  "  leav  e  the  siilijct  in  siitdi  a  eoiidltioii 
iliat  till' I'oiii'mrciiii'  of  (ireat  I'liit.iin  is  iifrosary  to  tlio  (■.■.talilishnii'iit  of  rc;riila- 
lidiisfiir  I  lie  pidiKT  jiiolcrtion  and  iiicsi  rval  ion  of  the  fur  seal  in,  or  lialiitnallii  resort- 
ihiT  to.  iieiiiij;  Sea,''  snlnnils  thai  the  lolhiwiin;  leunlatioiis  aro  necessary  and  that 
the  same  should  exlenil  over  t  he  w  ateis  here iiia tier  in  thai  lieliiilf  mentioned  : 

liist.  No  citi /en  or  sill) jeet  ot'  the  I'll i led  States  or  (iio.it  liritaiii  shall  in  any  man- 
ner kill,  caiitnre,  or  |iiirsiie  any  w  line  ii|i(>ii  t  he  ,-eas,  within  the  limits  and  Ixmndarius 
next  hereinafter  jiieserilied  for  the  (i)iiiat  ion  of  this  rei;iilat  ion,  any  of  the  animals 
( iiiiiiiioiily  ealli^d  fur  seals. 

Seeoiid.  Tli(!  forejioinjr  ref;iiliit  ion  shall  apply  to  and  extend  over  all  those  waters, 
outside  the, jurisdictional  liniits  of  t lie  aliovc-nieiitioimd  nations  of  the  North  I'aeilic 
<  Il  laii  or  IJeriiif;  Sea  wliieli  a  id  north  of  the  tiiirt.v- filth  parallel  of  north  latitude  and 

•  list  of  the  one  luindred  and  eiulitietli  meridian  of  lonj;'itiide  west  from  (irecnwieh: 
l'i"v\(]iA,  huivercr,  'J'liat  it  shall  not  iiplily  to  such  luirsiiit  and  eiri<!iiro  of  said  seals 
.(■'i  may  he  carried  on  hy  Indians  dwellinj;  on  the  coasts  of  the  territory  eitiier  of 

•  iicat  Itritaiu  or  the  r'nited  States  for  tlieir  own  )ieisoiial  use  with  spears  in  open 
c.inoes  or  hoats  not  transported  hy,  or  used  in  connection  with,  other  vessels,  and 
pinpelled  wholly  hy  jiaddles,  and  maiiiicd  hy  not  moii.'  than  two  men  each,  in  the  way 
aiii  ieiitly  practiced  hy  such  Indians. 

I'll  i  id.  Any  ship,  vessel,  hoat.oi  other  era  ft  (other  than  the  canoes  or  hoats  mentioned 
;iim1  descrihed  in  the  last  forejjoing  paraf;iaph)  helonuinL;  to  the  citi/.ons  or  siih.jei^ts 
III  eitlier  of  the  nations  aforesaid  w  hich  nvi>  he  found  actually  eniiaf^ed  in  the  kill- 


.  piiisiiit,  or  capture  of  said  seals,  or  pi< 


II  injx  a  voyaije  for  that  jiurpose  with 


ilie  waters  ahove  hounded  and  descrihed,  may,  with  her  tackle,  apitarul,  furniture, 
I'loN  isions,  aud  any  seal  skins  on  hoard,  he  (captured  and  made  prize  of  hy  any  puhlic 
iiniiod  vessel  of  either  of  the  nations  aforesaid;  and,  iu  case  of  uny  such  enpturo, 


38 


PROTOCOIS. 


iiiM."  lir  tjikcii  into  liny  port  nl'  tlic  iiiition  to  wliirli  tlic  ciiiitiu'iii'^  vessel  l)c1on};s  niid 
lie  (•oii(lciiiiif(l  liy  iirocccdiniTH  in  ;iny  conrt  of  comiioti  lit  iuiisilictiini,  wliicli  jiro- 
<«M'(liii^s  sli.ill  lie  eoiidiieled  sn  fill'  lis  limy  lie  in  iiecurdaiiee  wilii  llie  ((iiiise  and 
l»riiitiee  of  <:imi'ts  ol'  lid  I  ill  rally  when  silliii;^;  an  ]iri/e  eniirls. 

Tli(^  A<>('iiL  of  the  I'liitcd  States  also  road  the,  lollowiiiii  statt'iiKMif: 

Siilistitiite  ]ir(>|ioseil  liy  tlio  (Joverniiient  of  the  United  .Slates  for  liiidin<fs  of  facts 
Hnliniitted  liy  tlie  (ioverninent  of  (ireiit  lliif.iin: 

1.  That  the  several  searches  and  sei/nres,  whether  of  slii|)s  or  jrooils,  and  the 
soveral  arrests  of  iiiasterH  and  crews,  resiicctividv  nicntioiied   in  tlie  said  schedule, 


were  inin 


ie   1(V   the  anthoiitv  of   tlie   I'liitcd   States  ( ioveiMiiieiit.      W'hicii   and  ho 


many  of  the  vessels  iiieiit  iniii'd  in  said  schedule  were  in  whole  or  in  ]tart  the  actual 
)iro|ierty  ol'  liiilisli  sniijects,  and  which  and  how  niaiiy  where  in  whole  or  in  |iiiit 
the  actual  itroperty  of  American  siilijeets.  is  a  fact  not  passed  npoii  li\  t  his 'rriliiiiial. 
Nor  is  the  value  of  said  vessels  or  contents,  or  either  ot'  Iheiii,  deteriiiiiied. 

-!,  Tliat  tlie  sei/iires  afontsiiid  were  made  upon  the  sea  more  than  ten  miles  from 
niiy  shore. 

;{,  'J'liiit  the  said  several  sear<'lies  and  sei/iires  of  vessels  were,  made  hy  )>iil)lie 
iirmed  ve,sse,iH  ot'  the  I'nited  .States,  the  coiiimandeis  of  wliiidi  had.  the  several 
times  when  they  wen   made,  from  the  i'.xeenti  ve   Dispart  iiient  of  the  (iovenimenl  of 

py  of  one  of  which  is   annexed   hereto,  miirUed 


tlit^  I'nitcd  Slates.  iiistriicti( 


ins,  II  CO 


"  A,"  and  t nil t  the  others  were,  in  all  siihstant  iai  respe.  ts,  the  siiiiie;  that  in  ail  the 
inslances  in  which  proicediniis  wei'e  had  in  the  ilistricti  courts  of  the  I'nited  Stales 
rcsnltiim'  in  ('oiidcmnat  ion,  siicli  proceeding's  were  lieu,iin  hy  the  liliiiLV  of  liUids,  a 
eojiy  of  one  of  wliicji  is  annexed  hereto,  marked  '•I'.,"  and  Unit  the  lihels  in  the 
other  |iroceedinjis  were  in  all  snlistanlial  rcs]iects  tiie  same;  that  the  allciicd  acts 
or  oH'ciises  for  A\liich  said  several  searches  anil  sej/nres  were  made  were  in  eiudi  case 
done  or  coininit  led  upon  the  seas  more  I  liaii  ten  miles  I'ldiii  any  shore;  and  that  in 
each  case  in  which  seiileiicc  of  I'oiidcmnat  ion  was  had.  except  in  I  hose  cases  w  Ik  n 
llie  vcss(d  was  ri' leased  alter  condeiiiiial  ion.  I  hi'  capt  iire  was  ado)itcd  li\  the  (iov  <  in 
nient  of  the  t  iiilcd  Stales,  'riial  the  saiil  lines  and  iiiiprisonmenls  were  for  alleged 
lireaches  of  I  lie  niiiiiicipal  hpvs  of  the  1  nited  Stales,  wliicli  alleged  lireaclies  were 
wholly  (•ommilied  n)ioii  the  seas  more  than  ten  miles  fiom  any  shore. 

■t.  Thai  llie  several  orders  ineiil  ioiii'd  in  said  s»'liediile  wariiiiiL;  vessels  lo  Icavi^ 
Iicriiiu'  Sea  were  milde,  l»y  pilhlic  armed  vessels  of  the  I  niled  Slates,  I  he  com  man  dels 
of  wliicli  hiid,  lit  the  several  limes  when  they  were  j;iven.  like  instnict  io.is  as 
nientioiied  in  lilidilii;  15,  a  hove  )iro  posed,  and  that  the  \  esse  Is  so  w  a  rued  w  ere  eneaiied 
ill  sealiiiff  or  proseeiil  iiic  \()\a);es  for  that  purpose. 

T).  That  the  said  several  searches,  Mi-iiies.  ccindemiial  ions,  conliscatiniis,  lines, 
imprisonmi'iits,  and  orders  were  not  made,  imposed,  or  liiveii  iindi^r  any  .liiini  or 
lisserlion  of  ri^ht  or  Jnrisdicl  ion  except  such  as  is  snhmitted  to  the  decision  of  the 
arltitratoi's  liy  the  i|iiesl  imis  in  Article  \' 1  of  I  he   I'reaty  ol  Aihitral  inn. 

(1.  'I'liat  the  (list  liet  courts  of  I  he  I  niled  States  in  which  any  proceeiliim's  w  ere  had 
or  taken    for   llie  )iiir)ios"   of  coiideinninn'    inv    vessel   seized   as  iiieiilioned    in    the 


■liednle  lo  the  case  of  ( J 


at  r>iitiii!i. 


■s  I    tnlill.  il|c|Msi\ 


lad  all  llie  jnrisdicl  ion 


and  power  of  courts  of  admiralt.x .  imiiidinu  the  pri/e   jiii  isdid  io!i. 

Annkx  a. 


[.'<ei' l!r  il  i>li  cemilcr  lii^^e,  A  |>|>i'iiili\:,  \'mI.  F,  |).  7'2.] 

Ti;i..\sri;Y   Di'.i'AKiMi'.M.  (ii'iKi;  (IK   iiii'  Si:<i;irr.\!'Y. 

lliiHlihi;il(iii,  April  .7,  IS.'^r,. 

SiK:   licferriiii;  to  !>eparlnicnl  lellcr  of  this  ilate.  diieclinn  yon  to   procee  1  with 

(he  revenue  sleaiiier  /I'cdc,  Milder  your  coiniiiaiid.  to   the  seal    islands,   etc..   \-oii    ar(' 

heiehy  clot  lied  with  full-power  to  enforce  the   law  coiiiained    in   the    provisions  ot 

Keclioii  m.-iti  of  tlie  I'liited  States  U'ovised  Slatilles,  and  directed   to  sei/o  ,ill  vcshcIs 


PUOTOrOLS. 


31) 


(K'lon^s  and 
wliich  ])n>- 
roiUKi'  anil 

lateiiu'iif : 

iiirs  of  facts 


am!  arrrst  and  (lolivcr  to  tlic  jn'oiii'i' Miillicrilics  any  or  all  jxTsmis  \vln)ni   yon   may 
(Ictfct  violating'  the  law  rcl'crifd  to,  aft<'r  dnc    ^olici'  sliall  liav 


('  hi'cn  iil\  ell. 


I'  liy  ])nl)lic 
tlif  sevfral 
MTinncnt  of 
I'to,  marked 
at  in  all  tlio 
nitcd  States 
r  of  lilicls,  a 
lilx'ls  in  tilt" 
allt'siid  a<'ts 
in  cacli  caso 
and  lliat  in 
'  cases  when 
the  (ioM m 
e  I'lir  alleged 
eachcs  w  cie 

eis  |c)  lca\i^ 
coniiiianderri 
tiiM'lio.is  as 
s-ere  en^a^icd 

itions.    lines, 
ny   .  lain)    or 

<'isi<HI  of  t  h(! 

ms  were  had 

oni'il    in    the 

jnrisiliil  ion 


r  r.M'V, 

III  .7.  /xsv;. 

iroeee  1  with 
te.,  N'on  arc' 
iro\  isions  (il 
0  ,ill  vesHclB 


Von  will  also  seize,  iiii.v  liiiuors  or  tirearms  allemptcd  to  In'  intioijnced  into  the 
conntry  without  ]>ro|ier  jiermit,  nTuler  tin'  jirovisions  of  sc-clion  HI."),"!  ot'  the  ji'evisi^d 
Statntes,  ami  tho  proclamation  of  the  rresident  dated  Ith  February,  INTd. 


i{esiie<drnlly,  you. 
(Si},niod) 

(•ai>t.  M.  A.   IlK.vr.Y, 


C.    S.    KaI1!(  IIII.I), 

Acliiiii  Still  lari). 


ConiDKiiitliiiji  Ji'cri'iiiie  Stfaiiii'r  Hear,  Snii  Friiiiiimo.  ('a'il'iiniiu. 

Annex  I>. 

|Scc  I'.iilUli  lasc,  .\|)|ii.|i(li\,  Vol.  III.  1.  S.  Nn.'J.  l.-'ni.  ]i.(i5.1 

L\    THE  DISTUICT   COl  ItT   OK  TIIK   rMI'i;i)  STAIKS  l'(»UrilK    DiSTIJICT 

Ol'    AL\SK.\. 

At'drsr  spioii.M.  ri:i;M,   1SS6, 

To  the  Honora1>li!  liafa.M'tte  Dawson,  .ludj^fo  of  said  District  ('onrt: 

Tholihel  <d"  information  of  M.  I).  Mall,  attorney  for  tho  United  States  for  the  Dis- 
trict of  Alaska,  who  jiroseentes  mi  liohalf  of  said  Tnited  States,  and  liein<i  iiresent 
here  in  eoiirt  in  his  i)ro[)er  person,  in  the  nanu!  and  <m  liehalf  of  the  said  I'niti'd 
States,  ajjainst  the  schooner  Tlinnilnii,  hor  tackle,  ajipari'l,  lioats,  ear^o,  and  furni- 
ture, and  ajjainst  all  iiersous  inter\enin;j  for  their  interest  Ihcrtiin,  in  a  cause  of  for- 
feiture, alleges  ami  informs  as  follows: 

That  (Mnirles  A.  Aljhey,  an  otiicer  in  the  Ifi^vcnne-Marine  Service  of  the  I'nited 
States,  and  on  s]>ecial  <luty  in  the  ■\vaters  in  the  I  dsliii  t  of  Alaska,  heretofore,  to  wit, 
on  the  1st  flay  of  .Vnt-iist,  188(5,  within  the  limits  of  .\iaska  '{'erritory.  and  in  the 
waters  thereof,  and  within  the  ci\il  an<l  Judicial  District  of  .\laska,  to  wit.  wiiliin 
th(!  waters  of  that  ]>ortion  id'  licrinj;  Sea  hehuininj;  to  the  said  distrii't.  on  wati  is 
navigalde,  from  tin"  sea  by  vessel,  of  10  or  more  tons  liiinlcn,  sei/eil  the  ship  or  vessel 
commonly  called  .'i  schooner,  the  TlinnilDii.  her  tackle.  a|i)iarcl.  boats.  i.ii'l;(i,  and 
fiiinitiire,  beinj;  tli<^  ]u-o])crt.v  of  some  peisoii  or  pevsons  to  the  said  attoiin'y  unknown, 
as  forfeited  to  t)r((  Unit'   1  States,  fol'  ilie  fidlowinn-  causes: 

That  the  said  vessel  or  tciiooiu'r  sas  found  ens;a,ned   in  kiHiiu^  fur  seal  within  the 
limits  of  Alaska  Territi 
the  li'evised  Statutes  of  the  Inited  States. 

.\nd  the  saiil  attorne.v  suilh  that  all  and  sinijiihir  the  [ifemisis  are  and  were  true, 
:ind  within  the  admlyalt  and  marilime  iuri^dnl  ion  of  this  r'ouit,  and  that  by  le.ison 
I  hereof,  and ':\-  ''or' e  of  ihc  SI  iitiites  (d'  till'  riiiled  ."si.itcs  in   such  <:isrs  maile  and 


ami  in  the  waters  thereof,  in  violati(Ui  id'  section  llt.'id  of 


I' 


o\  id<>d,   the  aforementioned   anil    described   sihooiicr  or  vess 


'ilij;'  a   \es~el  of 


over  L'O  tons  burden,  her  tackle,  apjiarcl,  boats,  caruo  ami  I'uriiiture,  be  lame  and  are 
I'.irl'eited  to  tluMiKc^  of  the  said  I'liitei    Stales.  ;iiid  ihil  said  schooner  is  now  wllhin 
ho  district  aforesaid. 

Wherefore  the  said  iittorncy  prays  the  usual  process  and  nionit  ion  id'lliis  honor- 
al)le  court  issue  in  this  behalf,  and  that  all  persons  iuleicslcd  in  I  he  beforement  ioiieil 
■ind  desc^ribed  schooner  or  vessel  may  be  cited  in  i;('neial  ;ind  spiclMl  to  answer  tlu^ 

premises,  and  all  duo  proceed  in  fj;s  beini;-  ';ail.  tiial    the  said  scl mr  or  vessol,  her 

l:i'kle,  apparel,  boats,  c;ir;ji)  and  fiirnitiire  may.  for  the  cause  afoi-esaid.  and  other:; 
iippearinn'.  be  conilemneil  by  the  delinite  seii.'ruce  ami  dciree  of  Ihis  honor.ilde 
'•(ilirt  as  forl'eited  to  the^lse  of  the  said  I'liited  Sl.i  les,  accord  ini;  lo  the  fiuin  of 
llie  st.'itute  of  the  sai'l  I'nit'd  Stales  in  such  c;iscs  made  and  pio\  jded. 


(Signed) 


M.  D.  llAii. 
liiilid  Sliihs  IHsliiil    \tl„nini  far  Ihi   hixhUluf  Ma^li 


40 


PIJOTOCOLS. 


At  1.30  t1i(!  Tiilmiial  took  ;i  ici-css. 

On  rea.s.seml)!iii<i",  Sir  ('liarlos  Ikiisscll  be^-aii  liis  ai'fyunioiit  on  bolialf 
of  tlic.  (lOvcriuiuMit  of  Great  IJritaiii  on  the  (inestiou  of  rej;iiliitions  as 
('oiit('nii)lat('(l  by  Article  VII  of  the  Treaty  of  Aibitratioii. 
At  4  p.  ni.  tbc  Tribunal  adjourned  lo  the  next  day  at  11.30  a.  m. 
J)one  at  Paris,  tlie  <Stli  of  Jane,  18!).'5,  and  siyned: 

The  Prcxidcnt:   AlPH.  1)E   COURCEL. 
The  .iyenl  for  Ihe  UniUd  Slales:  JoiIN  W.   FoSTEll. 
The  AyviU  for  (Ireat  liritain  :   ClIAELES    II.  TurrEU. 
The- Secretary :   A.   IMBEIIT. 

Translation  certified  to  be  aceiiiate: 

A.  Baillv-Blanciiaku,  )  .,    c.       j     •  „ 
,,     .  ^  }  Co  Secretaries. 

11.   CUiS'VNtillAMli,  ) 


PROTOCOL  xxxvr. 

MEi:TlN(i    OP   PUIDAY,    JUiNK   0,   1893. 

The  Tribunal  assembled  at  11.30  a.  ni.,  all  the  arbitrators  being 
l)resent. 
8ir  Charles  IJiissell  lesunied  his  argument  of  the  previous  day. 
At  1.30  the  Tribunal  took  a  lecess. 

<)n  reassembling-,  Sir  Charles  IJussell  continued  his  argument. 
At  4  p.  jn.  the  Tribunal  adjourned  until  Tuesday,  June  13tli,  at  11. 


30 


a.  m. 


Done  at  Paris,  the  0th  of  June,  1S!»;»,  and  signed: 

The  I'resideiit:    AhVU.  DE   COUUOEL. 
The  Aijent  for  Ihe  r lilted  SIhUh:   JoIIN   W.    FosTEU. 
The  .lyeiit  for  dnnt  lirihihi  :   ('lIAKLES   H.  TUPPER. 
TlieSerretdry:   A.   IMBEIIT. 

Tianslation  ceitilied  to  be  accui'ate: 

A.  I>aii.l\-Blanoiiaiu),  )  /,    .,       ,     . 

II.   CUNV^(;iIAME,  ) 


PROTOCOL  XXXVII. 

MEI'.TINC    or   TUESDAY,  .H':,-K    13,1803. 

The  Tribunal  assembled  at  11.30  a.  id.,  all  the  arbitrators  being 
l»reseiit. 

Sir  Chailes  liussell  resumed  and  cunclnded  his  argument. 

At  l..">0  the  Tribunal  tuok  a  recess. 

On  I'easseuddin.'r.  Sir  Pichard  Webster  began  h --  ugun,-  ;'  on  behalf 
of  Great  Britain  on  the  (question  of  regulutioua. 


m 


■r 


PROTOCOLS. 


41 


on  bolialf 
iitioiis  us 

a.  m. 

IJCEL. 
Ell. 

urrEii. 


At  4  p.  in.  the  Tvibuiiiil  luljomncd  to  tlic  next  diiy  at  ll.MO  a.  in. 
Done  at  J'aiis,  tlit  latli  ol  Mmii.'.  ISO;!,  aiul  sij^ii^d: 

The  l');:.;,ki,t :   Al.lMI.   I)E   COUUOEL. 
The  Atinit  for  the  r)iilt'(l  Siafrs:  JoiIN   W.   I'^oSTKU. 

The  Aijeiit  for  Ureal  LiHaiii :   ClIAIJI.KS    H.   TuiTElt. 
The  Sceretarii :  A.    iMUKilT. 

Translation  certified  to  be  accurate: 


A.  Bailly  Blanciiaud,  )  ^,    ,,      ,     . 
H.  Cu.NVNGiiAME,  '  ]  Co-^^crctancs. 


>rs  being 

lay. 

nt. 

I,  at  11.30 


IIC'EL. 

ii:u. 

UPPER. 


jrs  being 


on  behalf 


PROTOCOL  XXXVIII. 

MEETING   OE    WKDNE.SDAV,  JUNE    14,  1S03. 

The  Tribunal  assembled  at  11.30  a.  in.,  all   the  arbitrators  being 
]»reseiit. 
Sir  Kicliard  AVebster  resumed  liis  argument. 
At  1.30  the  Tribunal  took  a  recess. 

On  reassembling,  Sir  Bichard  Webster  continued  his  argument. 
At  4  i».  ni.  the  Tribunal  adjourned  to  the  next  day  at  11.30  a.  m. 
Done  at  Purls,  the  14th  of  June,  1803,  and  signed: 

The  President:  AlPU.  ])]■;   (Joi'IU'EL. 

The  Jfienl  for  the  I'uited  States:  JOU.N    W,  FosTlOU. 

The  Aijent  for  Great  Britain:  ClIAlJLI'-S  II.  TUPPEB. 

The  Seen  turij:  A.lMUEllT. 

Tianslation  certified  to  be  accurate: 
A.  Baillv-Hlanciiauij 

fl.  CuiSYiSaUAME, 


^'  I  Co. 


>Scc)'(t<irics. 


Ph'OTOCOL  XXXIX. 

MEETING   (IF   Till  WSDAV,  JUNE    15,1893. 

The  Tribunal   assembled  at   11.. 50  a.   m,  all   the  arbitrators  beino- 
present.  * 

Sir  Bichaid  Webster  resumed  his  arguiiieiit. 
At  1.30  the  Tribunal  took  a  recess. 

On  reasseudding,  Sir  Bichard  Webster  continued  his  aigunu-nt. 
At  4  i».  111.  the  Tribunal  adjniinied  to  the  next  diy  at  U  a.  m. 
Done  ut  Paris,  the  15th  of  dune,  18!>3,  and  signed: 

The  I'nxident:  Al.PlI.  I)E   (JoillOEL. 

The  A     nt  for  the  I  iiitcd  .Slates:  d(»ll\    W.  I-'OSTJ^IU. 

The  Aijent  for  ilnal  llrilain  :  ClIAI.'LlOS    11.  TUPPEU. 

The  Seeretarii :  A.  ImPEUT. 

Translation  cert i lied  to  be  accurate: 


A.  BAILLV  15LANCJIAK1),  / 


H. CUNYNGUAME. 


'  '-  (Jo  Secietnri 


C8. 


42 


puoToroLS. 


-if? ' 


PROTOCOL  XL. 

MKKTlN<i    OF   FRIDAY,   JUNE   10,  IS03. 

Tlic>  Tribunal  iisscmblod  at  1 1  o'clock,  all  the  arbitrators  being  present. 
,  8ir  Ificliard  Webster  resumed  his  arj-ument. 

At  1.30  the  Tiibnnal  took  a  recess. 

Oil  reasseiiil»liii<4'.  Sir  Kiehard  Webster  continued  his  arjfunient. 

Tlie  i)resident,  in  adjonrninjj,  announced  that  during  the  temporary 
absence  of  Mr.  (Jnnynfyhaine,  the  Tribunal  authorized  Mr.  Flenry  Han- 
nen.  bairister  at  law,  to  perform  his  duties. 

At  3.o(>  J),  m.  the  Tribunal  adjourned  until  Tuesday,  June  L'Oth,  at 
1 !.:?()  a.m. 

Done  at  ''  iiij-.,  the  Kith  of  June,  ISO.'?,  and  sijjned: 

Th,' rri'Kidnit:  Al.PII.   DE   (30T^Rf'EL. 

TheAjirnt/or  till-  CiiUcd  Stiihs:  JoiIN    W.   FoSTEIl. 

The  Aijeni  for  (Irmt  llrilnhi  :  ClIAHLKS   II.  TUITER. 

riieStrrctary:  A.   ImHKUT. 

Translation  certified  to  be  accurate: 


A.    UAILLY  I5LANCIIAHD,  )   >^     . ,  ,       • 

'  >  CoScctrtanes. 

II.   CUNYNGIIAME,  ) 


rifOTOCOL  XLI. 


TMEETIXn    ()!•'    I'l'DSDAY,  .IHNE   L*(>.  1S03. 

Tin'  Tribunal  assembled  at  U.oO  a.  m.,  ail  the  arbitrators  being- 
l)reseiit. 

Sir  Richard  Webster  continued  his  argunu'ut. 

The  agent  of  Her  Ilritannic  Majesty  lai<l  before  theTribunala  scheme 
of  regulations  worded  as  follows: 

KM ;(i  ILLATIONS. 

1.  All  vessels «Mii>;;i<>iim'  in  pelajiie  hciiliiif;-  sliiill  \n\  i'('<|nireil  t"  olit.'iiii  lieciiHes  at  onn 
or  oilier  of  the  I'oUdwinu;  iioiMs: 

Vieloriii,  in  the  I'l'ovinee  of  liiitish  ('(ilnniliiii. 

Viinronver.  in  the  I'rovini'e  of  l!ritish  ( '(iluiiiliia. 

I'ort  Townsend,  in  Wasliinnlim  Teiiilorv,  in  the  Inited  States, 

San  l''raneiHeo,  in  tin'  Slate  of  California,  in  the  I'nilefl  States. 

2.  Sneh  licenses  sh.all  only  l>e  n'lunled  In  sa  11  ini;  vessels. 

3.  A  zone  nf  L'O  miles  an  Ml  ml  the  I'riliilof  I  si  a  nils  shall  lie  tvstalilished,  williin  whieli 
no  seal  liimliiijj  shall  he  iiermilted  al  any  lime. 

•1,    '  close  season,  from  the  l.'ilh  of  Se|itcmher  to  the  Isl  of  , Inly,  shall  bu  CHtal)lisheil, 
(lir  ill;;' which  no  jiclimic  sealiiij;  siiall  he  permillol  in  lieriny;  Sea. 
i>.   Is'o  rilles  or  nels  shall  he  used  in  ]ielaj;ie  sealing'. 
0.  All  sealing;  vessels  shall  he  reipiircd  to  carry  a  distinuiiishiny;  llay;. 

7.  The  masters  in  chariic  of  sealiiij;  \ess<ds  shall  kce|i  aeenrale  lof;s  as  to  the 
tinie.s  and  jilaces  of  sea.liiif;.  the  niimher  and  sex  of  the  seals  captured,  and  siiall 
enter  an  ahstrai't  thereof  in  their  ollicial  hi^s. 

8,  Ijicenscs  shall  ho  siihject  to  forl'eitnro  for  hreacli  of  ahove.  regulations. 


PROTOCOIiS. 


43 


At  l.;;(Mli«*  Tiihniial  to(»k  n  recess. 

On  i(';isseml)liii<;-,  Sir  Kicliiird  Webstei'  resinned  nnd  eoiielnded  liis 
iirjjmneut. 

Tlie  ajient  of  Her  I'.ritimnic  ^Fajesty  tlion  pi'eseiitod  to  tlie  TrilMinal 
the  lollowiiif;  pajier,  wnieli,  by  ayreeinent  witli  the  agent  of  the  I'nited 
States,  was  snlnnitted  as  a  substitute  for  tiie  jjupers  heretofore  pre- 
sented as  to  liinlinjis  of  facts: 

I  iMiTNCis  oi'  KAci'  ri:or(tsKi>  itv   iiii':  A(ii:Ni  ok  (iukap  iniUAis'    ani>   a<;i;i;ki>  to 


AS  iMS(>vi;i)  i!V    iiii'.  AiiicN'r  i-oi!    iMi-.    inhkii  siATi: 

•IIMIilNAI,  OK    AlOlKlliATION    Kolt    tTS   fO.NSI  KKKA  1  IO\. 


AND     SIIIMIIIKK    K)    TMK; 


1.  'I'liiit   llio  several  sciirchrH  jiiid   sciziircis,   wliclliiT  of  Hlii]is   or 


oixifl,  an< 


1   til 


ors  beinsi" 


il  a  scliome 


('(MiBt's  at  <»no 


(fi'H  !is  tct  the 
ri).  and  Hliall 


srvcral  arrests  of  masters  and  crews,  respeelively  mentioned  in  tin-  selu'dnle  to  tlie 
I'litisli  ease,  jiafjes  1  to  (iO,  inehisise,  wen-  made,  liy  tli(!  aniliority  of  tlie  rnitcul 
States  ( Jovernment.  'I'Ik!  ijne.stions  as  to  tlio  value,  of  tin-  said  vessels  or  tlieir  eon- 
tents.  <>'•  either  of  tliem,  and  tin;  (piesMon  as  to  wiiellier  the  xcssels  nieiit  ioned  in  the 
sehc'    ii<'    to   the  Uritish  easc^,  or  any  of  tin m,   were  wiiolly  or  in   part  the  aetnal 


!• 


lertv  of  citizens  of  the  Knited  Stales,  have  lieen  withdrawn  from  and  ha\(!  not 


licen  considere(l  liy  Iho  Trihunal,  it  heint;  nnderslood  that  it  is  open  to  the  I'nited 
states  to  raise  these  ([nestions,  or  any  of  them,  if  tliey  tliinlc  lit,  in  any  fntnre  neiio- 
tiations  as  to  the  liahiiity  <d' the  l'iiit(!d  States  (Jovernment  to  |iay  the  anionntH 
mention(>d  in  the  s(diednle  to  the  liritish  case. 

■J.  That  the  siM/.nrcs  aforesaid,  with  the  (>\cepti(in  of  Jhe  rnthjhuhr,  seized  at  Ncih 
l!ay,  were  m.ade  in  Hf'ring  Sea  at  the  ilistar.ces  from  shore  mentifiiied  in  the  scliednle 
;nine\ed  hereto,  marked  "(1." 

11  'I'hat  the  said  several  si^irelies  and  seizures  of  vess(ds  were  imnloliy  public  arnuMl 
vessels  of  the  Tiiited  States,  the  eommandcM-.s  of  which  had,  iit  the  several  times 
when  they  were  made,  from  the  I'lvecutive  Dejiartment  of  the  (iovernmeiit  of  the 
United  States,  instructions,  a  copy  of  one  of  w  hicli  is  annexed  hereto,  inarUed  "  A," 
.•iiid  that  the  others  were,  in  .all  sulistaiiti.il  respects,  the  same:  that  in  all  the  instances 
in  whii'li  pnx'cedinjrs  were  had  in  th<'  district  I'onrts  of  the,  Uniteil  Stati's  resulliii}; 


ill  condemnation,  such  ]iroceedinj;s  were 


liy  the  lilliii^  of  liliels.  a  coj)y  of  one  of 


which  is  annexed  hereto,  marked  "l!,"'aiid  that  the  Ijliels  i'l  the  other  proceediiij;s 
were  in  all  substantial  resjieets  the  same;   that  the  ailei;-ed  ads  or  otfenscs  for  wliieli 


(1  several  seaivdies  and  seizures  were  made  were  in 


ase  done  or  committed  in 


lierinj;  Sea  at  th(>  distances  from  shore  .aforesaid:  ami  that  in  each  ease  in  wiiich 
seiiteneu  of  condemnation  was  ]iassed,  excejit  in  tliosc  cases  when  the  vessels  were 
released  after  condemnation,  the  seizure  w;is  adopleil  l>y  the  (Jovcuiimeiit  of  tlies 
I  iiited  States:  and  in  t  hose  e;ises  in  which  the  vessels  were  reje.ascd  t  he  seizure  was 
made  liy  the  authority  of  the  I'nited  .states.  Thai  the  said  lines  find  imjirisonments 
were  for  alleijed  lireaches  of  the  municipal  la  v.  s  id'  tin;  I'nited  States,  wliii  h  alleged 
liieaches  were  wholly  eonimitled  in  Heiiiif;  Sea  at  the  distances  from  the  shore 
aforesaid. 

I.  That  the  several  orders  nientioned  in  the  schedule  annexed  hereto  and  marked 
"  (","  wiiriiin-j  vessids  to  lea\e  or  not  to  enter  IJciiiiff  Sea.  were  iiiad(!  liy  juililii! 
armed  vessels  of  the  United  States,  the  commaiiders  of  which  had,  at  the  several 
limes  when  they  were  fjiven,  like  instriietions  as  mentioned  in  lindinix  !5,  above  pro- 
posed, and  that  the  ves.s(ds  so  warned  were  eii^a^icd  in  sealiiijf  or  proseciitiiifj  voy- 
ages for  that  purpose,  and  that  smdi  action  was  adopted  by  the  (iovernment  ot'  the 
'iiited  .States. 

"i.  'I'hat  the  district  courts  of  the  I'nited  States  in  which  any  proceedinj;s  wer*' 
iiad  or  tiikeii  for  tin;  piirpo>e  of  condemning;  ;iny  vessel  seized  as  mentioned  in  the 
silicdnle  to  the  ease  of  Great  Britain,  pai;es  1  totiii,  iiiclu.sive,  had  all  the  jiirisdicti'i" 


nsa 


44 


PROTOCOLS. 


ami  powers  of  courts  of  adiiiiralty,  iiii'hulhij^  llio  ])rizo  Jurisdiction,  l)nt.  tliiit  in  each 
case  the  Hisntence  pronouucod  by  the  court  was  based  upon  tlin  <;r()nnd.s  set  (bitli  in 
the  libel. 

Annex Ks  A  and  B. 

(For  the  text  of  these  annexes  see  Protocol  XXXV,  Annexes  A  and  B  to  tlic  find- 
ings of  lad  submitted  by  the  agent  of  the  United  States.) 

Annex  C.  • 

The  following  table  sliows  the  names  of  the  Hritisli  sealing  vessels  seized  or 
■warned  by  United  States  revcMUie  cruisers,  18(S(i-y(),  and  the  approximate  <listanci\ 
from  land  wlien  seized.  The  distances  assigned  in  the  cases  of  tlie  Carolena,  Thorn- 
ion,  and  (tnnard  are  on  tlie  autln)rity  of  United  States  Naval  Commander  Abbey 
(see  I'il'tietli  Congress,  se(!ond  session,  Senati;  Executive  Document,  No.  10(»,  pp.  20, 
30,40).  The  distances  assigned  in  the  cases  of  tlie  J/i)ia /icc/i;,  \\\  P.  Snjiward,  Dul- 
p\i»,  and  Grace  are  on  the  authority  of  Captain  Shepard,  U.  S.  K.  M.  (Hlue,  Ho(d{, 
United  States,  No.  2,  1890,  pp.  80-82.     See  Appendix,  Vol.  III.) 


Kiiiiie  lit'  vcsKcl. 


('aioliiiii. . 

'I'lKlMlldll  . 

Oiiwurcl... 
■l'"av»)ritt). . 


Anna  I'ock 

\V.  V.  Saywiinl. 

Dolpliiu 

([nice 

-Mfn^d  Adams. 
A.lii 


Date 
of  seizure. 


Approxiuiali!  ilistaui'c  I'mtii  laiiil  w  lit-ii  si'ized. 


L'liiti'd  Stall's 

VCHHcl 

making  Ht'i/.iiru. 


An;;.  l.lKWi 

Ang.  ],18f.li 

Ang.  2,  I8H0 

Ang.  2,1886  ! 

Jnlv    2,1887 
Jnly    9,  \M7  | 
.Inly  12,  1887  ' 
Jnlv  17,  1887 
Auu'-l",  1887 
I  Ang.  2,->,  18S7  ; 

'Irinmpli ^  Ang.    4.1887 

.1  Manila '  Jnlv  HI,  18811 

J'alliliii.irr Jnly  2!),  1889 

Triumph 'July  11,1889 

lilack  Itiamniid I  Jnly  11,1889 

],ily '  Aim.    tl.  1889 

Ariel Jnly  ;1U,  18H9 

Kale Ang.  i:i,  1889 

Minnie July  l.'>,  1X89 

i'allilinder Mur.  27,1890 


Ci.rwiD. 
Cor  win. 
Curwin. 


Rush. 
ltn..<li. 


7.'>  miles 

711  miles 

1  It  mill's 

Warned  by  Corwin  in  about  .same  |iii.>4itii>u  as 

Onward. 

Cti  ni  iles 

59  miles 

49  miles l!n»li. 

90  miles '   Itnsli. 

(i2  miles I  liiisli. 

l.'i  miles :  Jiiar. 

W.arni'dbvltnsli  not  to  enter  lieringSe;i.  I 

no  miles j  Kiisli. 

M  miles linsli. 

Ordered  onr  of  liering  Sea  by  linsli.  (?)  As  to 

])iisitii>n  when  waineil. 

I!.')  miles i  Itnsh. 

Cti  miles j  Unsli. 

Ordered  out  of  Bering  Sea  by  Ilnsli. 

do ' I  Hnsli. 

O.'i  miles linsb. 

Seized  in  Neaii  Bay  (1) 1  Corwin. 


(1)  N'eab  I'.ay  is  in  the  Slate  of  Washington,  and  tlie  I'ath tinder  wns  seized  there  on  ebarges  made 
again^l  lier  in  Miring  Sea  in  the  jirevions  year.     She  was  released  two  days  later. 

Mr.  (Miristo]»lier  Kobinsou  then  beyaii  his  arguiiieiit  on  the  (jucstion 
of  regiiliitioiis. 

At  4  p.  m.  the  Tribiiiial  adjonriied  to  the  next  day  at  11.30  a.  in. 
Done  ut  Paris,  the  20th  of  J-.ine,  IS'.tH,  and  sijiiied: 

The  I'nuidi'nt:  AiA'lI.  DK   COUKCEL. 

The  .Ujint  for  the  Lnitvd  Slates:  JoiIN  W.   FoSTKK. 

The  Agent  for  a  real  liritain:  ClIAHLES   II.  Tui'PICU. 

The  Secretary:  A.   ImUERT. 

Trauslatiou  certilied  to  be  accurate: 

Co-Svcrttiiry:   A.    BAILLY  BLANCIIAUD. 
Acting  Co- Seen  tar y :  UeNUY  A.  ilA^'NEN. 


PROTOCOLS. 


45 


t  in  Oficli 
lot'tli  in 


tlic  fiud- 


Bci/.cil  or 
I  distani'o 
Id,  Tlioni- 
or  Alilxsy 
K),  pp.  20, 

;liu!  Hodk, 


liti'tl  Stiiti's 

vrssrl 
iiiigsri/.ure. 


rwin. 
irwia. 
)i\viu. 


lis)), 
iisli. 
ii-.li. 
iish. 

isli. 

■111'. 

iish. 
sit. 


lull, 
isll. 
nvin. 


liiirj><"8  iiia'le 

(liiostion 
in. 

JCEL. 

u. 


HARD. 
IKN. 


PROTOCOL  XLII. 

MEETING   OF   WK1)NKS«DAY,  .JUNE  21,   1S0.3. 

The  Tribunal  iisseinbled  at  11.30  a.  ni.,  all  tlui  arbitratorn  boinjj 
pro.sent. 

Sir  Ivichard  Wcb.stcr  i»r(»(lii(!«Ml  and  proposed  to  read  to  \hv.  Tribunal 
certain  doeunient.s  recently  picsented  to  the,  rarliainent  of  (Ireat  Brit- 
ain containiu};  correspondence  between  (Ircat  IJritain  and  I'us.sia  on 
tlie  subject  of  tl>e  seizure  of  llritisli  vessels  by  Russian  cruisers  in  the 
Uerinji'  Sea. 

^Ir.  Carter  objected  to  these  documents  beinj;  reji;arded  as  before  the 
Tribunal. 

The  president,  after  consultation  with  his  colleagues,  ai.aouncH'd  that 
the  Tribunal  would  i)erniit  the.  documents  to  be  icad,  but  reserved  t,() 
itself  for  further  consideration  the  (juestion  of  theii-  admissibility  as 
evidence. 

Sir  Kichard  Webster  then  read  an  extract  from  the  documents  in 
(piestion. 

Mr.  Christojdier  Kobinson  then  resumed  his  ar<>ument. 

A.t  1.30  the  Tribunal  took  a  recess. 

On  reassembling,  Mr.  Ivobinson  continued  and  concluded  his  argu- 
ment. 


At  3.50  p.  m.  the  Tribunal  adjounu'd  to  the  next  day  at  11.30  a.  m. 
Done  at  Paris,  the  lilstof  -June,  l.S!»3,  and  signed: 

The  rnslileiil:  A  I. I'll.   1)E   COURCEI-. 

The  Agviit  for  the  riiilcd  SIiiIih:  .loiIN    W.   I'OS'J'ICU. 

The  Aijcnl  for  drail  Urilaiii:  ClIAUI.KS    II.  TliPl'ER. 

The  Sccretunj:  A.    iMliElf.T. 

Translation  certitied  to  be  accurate: 

Co-Serrel.irii :    A.    DAIIJA'-UlANCIIAKD. 
AcHiiij  Co-fievreturii :    ILeNUV   A.   llANNEN. 


PKOTocoL  xrjir. 

MEETINCI   or   Till  KSDAV,  .UM;   2L',   1S!»3. 

The  Tribunal  assembled  at  11.30  a.  m,,  all  the  arbitrators  being 
present. 

The  Honorable  Kd ward  J.  Phelps  be^au  his  argument  on  beiialfof 
the  United  States. 

At  1.30  the  Tiil»unal  took  a  recess. 

On  reassemlding,  the  Honorable  Edward  J.  Plieli)s  continued  his 
argument. 


46 


PKO'I'OCOLS. 


At   i  p.  III.  till-  'rrihiiiiiil  ntlioiinicd  to  the  ii<'\t  *l:iy  ill  1 1.-">(*  a.  in. 
Doiu'  iit  Paris,  tlic  I'-iid  of  .liuic  IS!>;5,  and  sijuiicd : 

The  I'liKidriil:  Al.l'll.    l»i;   ('OUIK'KL. 

The  .Uinil  forUii-l  iiilxl  Sliiirs:  .loilN    \V.    l'(  tSTI",!.'. 

Thr  .hjnil  for  Urnil  liriliiiii  :  CllAHI-KS    II.   TlM'I'l-}!!. 

/■/-<■  Snrciurji:  A.    blliDIM'. 

Translation  ct>rtili('«l  to  Im  anMiiatc: 

<;,-S,,rrl<,r!i:    A.    UAILI, V   IJLANCII.MM). 
Aitiii'l  Co-SnirlKiij:    IlKN'UV    A.  ilANMON. 


PKM )!'()('( )L   WAV. 

Mi'.i'.riNti  <»!•'  l•|Jll^A^ ,  ,11  m;  i'."!,  ISO 

Tlio  'rrihiinal  assciiihlcd  at    Il.;!(>   a.  in.,  all  tlic  aibitrafors  b('iii;.j 
pK'si-nt. 

Tlie  lloinnalih'  Mdward  .1.  I"lit'li»s  ii'snim'd  liis  ai.uiiiiiciil. 
At  i..'!0  tlu' 'riibiiiial  took  a  recess. 

On  leassenihlinji-,  tlie    lloii(»ial»h^   Mdward  .1.  I'lielps  eontiiiucd  Ids 
ar.unment. 

At  4  p.  in.  tlie  Tiihunal  adjonnied  until  'i'nesday,  .Iiiiie  L*7tli,  at  1 1..">(> 
a.  III. 

hone  ai  Paris,  the  H.'ii'd  of  June,  IStKI.  and  siuiied: 

Till  I'nsidciil :  Al.l'll.    I)i;  (!()ri;('K!,. 

Thr    iiii  III  fur  llir  r  nihil  Slut,  s:  .JOHN    VV.    l''()S'l'i;i{. 

Tilt-  .liiiiil  for  i;r,iil  Urilaiii  :  ("IIAIIM'.S    II.  Tl  IM'Klt. 

/'/((   Striiliirii :  A.    ImI!1:1M'. 

Translation  certilicd  to  be  aecniate: 

roSinrhirii:    A.    P.AIIJ.N  Ul.ANCIIAllU. 
Adhiij  Co-^iTnliuji:    liKMiV    A.   llAN.NEJN. 


PliOTOCOli  XLV. 

MKirriNd   OF  TIKSD.W,  .Tl  .\E  27,  1803. 

The  Tribunal  assembled  at  ll.;ib  a.  in.,  all  the  aibitiators  being 
present. 

The  Honorable  Ivlwatd  .1.  Phelps  resntned  his  argiiiuent. 

At  l.;>(»  the  Tribunal  took  a  leeess. 

On  reasijombling,  the  Jioiiorable  Etlward  J.  Phelps  continued  hi.'* 
ariiunii  nt. 


PUOTOCOLS. 


47 


At  4  |».  m.  thcTiilMmiil  i.<lj()iinH..l  to  lli,.  mvxtnuyat  IL.'iOii  „, 
Done  at  Paris,  tlic  L'Ttli  of  .Imic,  IS!»;;,  iiii.l  si-ii."<"l: 

Tliv  I'lrxiilnil:  Al.l'H.    Di;    ( 'oUROKr-. 

Ttm  .IffcHt/or  Ihv  Ciiilnl  .Shilts:  ,I(»IIN    W.    l''()S'noi{. 

The  .\<in,l  fur  drml  Itnhiii,  :  ( 'll  A  lil,|.;s    II.    T(I  l'|•^;l^. 

■/'//(■  Snalunj :  A.    iMIiKIJT. 

Translation  certifiwl  to  be  accurate: 

<\>S,rn  1,1,11 :    A.    r>AlM,V UlANCUAIM). 
Avliiuj  (  „S,nrl,ini:    IlKMiV    A.    IlAiN.NKI^. 


tors  bciuf,' 


PK'OTOCOL  xi.vi. 

MKHTINO    (»|.'    WKDNKSMAV,   .1 1  AK   L'S     i 


S!)3. 


'V\\v,  Tribunal    asscniblcd    at   W.'M) 


present. 

Mr.  II.  Ciinynji'lia 


i>.  HI.,  all   the  arbitrators  I 


X'MI" 


WW.  res 


been  fiiKilled  temporarily  by  Mr.  lien-v  II 


"iue,Miis,ln(ies.>r(;o  Secretary,  wl.icli  bad 


y  ilanneii. 


riie  Honorable  Kdward  J.  I'lielps  contiiined 

At  l.;!()  the  Fribunal  took  a  re(H'ss, 

On  reassembling,^,  the  Honorable   Edward  .1.   I'jiel 


ins  argument. 


ar.niinioMt. 


|»s  coidiMMcd  lii: 


At  1  p.  ni.  tl  e  Tribunal  adjourned  to  the  lu'xt  ib 
Done  at  Paris,  the  I'Sth  of  June,  l.S!);{,  u„d  si-ned: 


ly  at  n.;;()  u.  m. 


The  i;;.-ihJ,i,l :   At. I'll.    DE   ( '(»! '  l.'CIO 


The.  Aijrnl  for  Ihe  Uiiilvd  SlalcH:   .loilN    W.    I< 


The  Jijnil  for  drcat  Jl, 


<>S'i'i;u. 


Hail,:   (;hAI{LI;S    II.   Tui'l'EB. 


Translation  certified  (o  be  acciiratt 


The  Smilnry  :    A.  JMIJEUT. 


A.  IJaillv  IJlanoiiak'd,  ; 

U.  CUNVNcillAMK,  ) 


CotScrntar 


es. 


PROTOCOL  XL VII. 

MEETING  OF   Till  i^sDAV,  .UNE  29,  ISaX 

The  Tribunal  assembled  at  ll.;JO   a.  n..,  all  the  arbitrators  bein<^ 
present.  * 

The  Jlonorable  Edward  ,1.  Phelps  resumed  his ai-un.eut 
At  1:M)  the  Tribunal  took  a  recess. 

uued  his         I  *^"  '^f  ««'"l>lii.g,  the  Honorable  Edward  J.  Phelps  eontiiiued  his 

■         arguuiout. 


48 


PROTOCOT.a. 


At  4  |).  III.  tlie  Tribmiiil  iHlJoiuiied  until  Moiulay,  July  3r{l,  at  11.30 
a.  III. 
Done  at  Paris,  the  2!>tli  of  Jmip,  1S!).'{,  and  sijjned: 

The  I'rcxidnit:    AlPII.    DE   COURCEL. 
The  .lunil  for  the  I'liilal  SIiiIch:    .loiIN    VV^.   FOSTEB. 
The  Aijvnt  for  C.rnil  linliiiii  :   ClIAULES   H.  TuPrER. 
The  Sirntiirii :   A.   ImUEET. 
Transliition  cortifuMl  to  be  accurate: 

A.    IJAlLLY-IJl.ANCIIAin),  )  ^,      .,         ,       .„„ 
11.  CU.WiNcniAME,  ) 


IMtOTOCOL  XLVIII. 


MEETI>;(i    <•!<"    MONDAY,   JULY   3,   1803. 

The  Tribunal  assembled  at  J  1.30  a.  in.,  all  the  arbitrators  being 
present. 

The  Honorable  Kdward  J.  Phelps  resumed  his  argument. 

At  1.30  the  Tribunal  took  a  recess. 

On  renssembling,  the  Honorable  Edward  J.  Phelps  continued  his 
argument. 

At  4  p.  III.  the  Tiibiiiial  adjourned  to  the  next  day  at  11.30  a.  ni. 

Done  at  Paris,  the  3rd  of  July,  LSO;},  and  signed: 

The  rnsidcnt:    AlPII.   DE   CoTMJCEL. 
The  .l<jnitfor  the  L'nilid  Slaivs:    JOIIN    W.   FOSTKK. 
The  .Uivnl  for  Creat  liritnin:   ClIAULES   II.   TUPPER, 
The  Sarctury  :   A.  I.AIBERT. 

Translation  certified  to  be  a<H  urate: 

A.    IJAILLY  P.LANCI1AUU, 


11.   CU.NViNGILVME, 


Co-Si'crctariea, 


PKOT()(H)L  XLIX. 

MEETING   OP   TUJOSUAY,  JULY  4,  18f)3. 

The  Tribunal  assembled  at  11.30  a.  m.,  all  the  arbitrators  being 
l)resent. 

Tiie  Honorable  Edward  J.  Pheli)s  resumed  his  argument. 

At  1.30  the  Tribunal  took  a  recess. 

On  reassembling,  the  Honorable  Edward  J.Phelps,  continued  his 
argument. 


PKUTO(  OI,s. 


49 


1,  at  11.30 


UCEL. 

"ER. 

UPPER. 


)r8  being 

inuod  his 
u.  lu. 

RCEL. 

KR. 

UPPER. 


)rs  being 


luied  his 


At4  J).  III.  the,  Tiibuiiiil  !•  'JoimimmI  (.,  ||,r  next  ,|;,v  at  1 1  Hi)  n   i„ 
Dyne  It  I'iiiis,  rlic  Uli  ui  ,|,ily.  IM).;,  .hkI  si-i.cir: 

Tl,tl;r.-<iil,i,l:  AlJ'lI.  DK   ('(  U   IK 'i;!,. 

Tliv  .li/n,l  /or  III,'  I  inlulSl,ti.,'t:  ,I()I|\    \\ ,    |"(  )SI  i;i;. 

Tlir  .t;/riil  i„,(li,,tl  Ihihiiii:  ( 'll.AKl.KS    II.  Tl  l'l'j;u. 

Tliv  Scniiiiij  :  A.  I.Allti:UT. 

Triiiisliitioii  fcrtilU'd  t(»  \n'  iicciiiate: 
A.  IIaiij.vIJi.anciiajjo,  / 


JJ.  CUNVNGIIAME,  ) 


Co  SvfntiirUti. 


IMfOTOCOL   I.. 

.■\ij;i;tin(;  oi'  \vi:i)m:si) a  v.  .i  ri.v  a.  iS!).'}. 

Tl.e  TiilMinal  as.seiul.Ird   at    Il.-K)  a.  m.,  all   iIm-  a.  l.il,a(o,s  U'uv^ 
I  in '.sent.  "^ 

TIm-  lldimiable  Kdwaid  ,1.  I'liclps  icsiiiiicd  his  aiguiiiciit 
At  l.;;()  tlicTiil.iiiial  took  a  n-c.-ss. 

On  icasscmbliiig,  tl,(.   Ilonoiablc   K.hvanI  J.  IMiclps  roiitinncMl   liis 
aigniucnt. 

At-1  p.  ni.  tiieTiihimal  adjouint'd  to  llic  next  day  at  ll.;j()  ji.  m. 
Done  at  Paris,  tlic  atii  of  July,  18!);5.  and  siyncdr 

'I'liv  I'nuldiiil  :  .Vlpu.  \)l)   ( 'or  KM  ;;i.. 

The  Atjcnl  for  thv  liilUd  Sl„i,n  :  ,I()II.\    W.    Fo.S'J"i;i;. 

The  .lijciil  for  (Irml  Uriluin  :  ClIAKLKS    11;  TuPl'Ei:. 

'I'll,  Srrnlnnj  :  A.  JMUEUT. 

Translation  eertilicd  to  he  accurate: 


A.  Uailia  JJlaaciiari),  /  ,,    „ 
U.Cu^vivuiiAME,  ^  to. Sen; lanes. 


IMfOTOCOL  LI. 

:mei;i'ing  op  iiii  ksdav,  .iulv  d,  i,sj),'{. 
The  Tribunal  assembled  at  ll.;!(»  a.  n..,  all   ll„.  arbitrators  bein- 
present.  *' 

The  Honorable  Edward  J.  IMielps  icsumcd  bis  arjiunicnf. 
At  1.30  the  Tiibimal  tcoli  a  reeess. 

On  reassembling,  the    Honorable   lldward  .1.  Pheliis  continued   his 
iirgnnuMit. 
At  1  p.  III.  the  Tribunal  adjourned  to  tli<'  next  day  at  Il.;j()  a,  m. 
Done  at  Taris,  the  (Jtli  of  July,  IS!).!,  and  signed: 

The  I'rti^iihul:  A  I, I'll.   DE  (JoilfCEL. 

The  .tyciit  f,jr  the  liiltcl  ,SI,iU.'i:  J<JII.N    \V.    FoSTEK. 

The  A,j  nl  f„r  (imit  livilain:  ClIAllLES    II.  TUPPER. 

The  Sicirlari/ :  A,  ImueUT. 

Translation  eertided  to  be  accurate: 

A.  BAILLV  JJLANCirAKO, 


n.  CuNvmaiA.ME 
a  «— VOL  1 — 


I  Co-^tvt' 


cUirics. 


50 


PROTOCOLS. 


im;()T()( oi.  ur. 

i\ii',i;i'iN(i  (»i    |•l;ll)A^ ,  .It  I.N    7,  ISD.'J. 
'i'lu'.  'riihuiiiil   ii.-^si'iiiliU'd    at    I1.;»0  a.  in.,  all  the  arl>itrafois  liciii"- 

pM'si'llt. 

Tlic  IIuii(»ial)I('  l.'dward  .1.  IMu'lii.s  icsuiikmI  lii.s  ar<;Hmfiit. 
At  l..')0  llic 'i'lihuiial  took  a  iim'cs.s. 

On  n'as.si'iiiMin;;',   tlic   lloiiorabiL'   I'alward  .1.    I'liclp.s  coiitiiiucd  Ids' 
argument. 

At  I  i>.  111.  tlic  Tribiiiial  adjoiinu'd  t<»  the  iiivxt  day  at  L'  \).  in. 
Done  Jit  I'aii.s,  the  7tli  olMiily,  ISK,!,  and  signed: 

Thf  I'irsidnii:   Al.l'll.  Dl',  (!()ri{f!i:L. 
The  .hjfiil  /or  llic  riiiird  .St<il,i:   .loiIN    \V.    l''(»SI  i;i{. 
The  Atjnil  Jor  iinat  llrilniii :    (  "ll  AK'I.KS    II.  TllTJiU. 
Thr  .Sirirhtru  :    A.  JmUEUT. 

Translation  ccrtilicd  to  hv  acciuate: 


A.  IJAII.I.Y  r.l.A.NOlIAUD,  )   .,     .,         ,       . 
11.  Cl'NV.N(illAMi:,  ) 


PROTOCOL  LIII. 

irEKTINC    OF   SATIUDAV,  .H  LY   8,  1 S03. 

Tiic   Tiihunal   assoniMod    at    li    2).   in.,   all   tht'    arbitrators   bi-ing 

present. 

The  lloiioiablr  I"'(h\ard  J.  IMiclps  contiuucd  and  conclmled  liis  argu- 
nu'iit. 

ii'w  Cliarlcs  Kiisscll,  in  the  name  of  his  colleaiines,  thanked  the 
ineinbeis  oi"  the  Tribunal  I'or  the-  kind  attention  with  which  they  had 
followed  the  leiifithy  debates.  He  als()  thanked  the  secretary,  eo.«ecre- 
tarics,  and  assistant  secretaries  oi  the  Tribunal,  as  well  as  tiie  i)ri\iite 
secretaries  of  the  arbitrators  for  their  ol)li,!;in,y'  and  tt.setul  assi.Ntaiice. 

The  Honorable  l-Mward  J.  IMielps  indorsed  tiic  leinarks  of  Sir 
Cliarh's  liiissell  in  the  name  ol"  c(UMi.sel  for  the  (loverniiu'ut  of  the 
United  States.  He  referred,  on  behalf  of  all  liis  colleagues,  to  the 
ability  and  courtesy  with  which  the  president  had  directed  the  discus- 
si(  lis,  and  he  renewed  the  expression  of  their  gratitude  for  the  hospi- 
tality of  France. 

The  president  thereupon  announced  that  the  Tribunal  would  take 
the  case  under  j-onsideration. 

Sir  Charles  Russell  and  the  Honorable  Edward  .1.  Phelps  e.xpressed 
their  desire  that  in  ease  the  Tribunal,  during  its  deliberations,  should 
lind  it  nei'essary  to  obtain  from  counsel  any  lurther  information,  the 
request  for  such  information  and  tho  answer  thereto  should  be  iu 
writing. 


ois  bciiiir 


iiiunl  liii^ 
III. 

TKK. 

r  I' ITER. 


PUOTOCOLS. 


ni 


U>rs   boiiiff 


Ills  argii- 


iiikod    tlie 
tlicy  liiiil 
■,  lo.-t'crc- 
le  piivutc 

<si.staiic('. 
;s   of   Sir 

'lit    of  tlK' 

les,  to  tlic 

tlic  tliscus- 

tlie  liospi- 

touhl  take 

ex  pressed 
)iis,  should 
nation,  tlie 
juld  be  iu 


Tlic  presidi'iit  replied  tliat  lln' 'riil»iiiial  would  take  note  of  tlie  reipiest 
as  far  as  jiossihle,  willioiit  lioweNcr  siii  reiidn  iii^'  the  ri};lit  tjiveii  it  by 
the  treaty  of  re<iiiiriii,ii  all  sueii  iiiforiiiali(»ii,  wlietlier  oral,  written,  or 
printed,  as  it  nii^lit  deem  useful. 

The  a;»ent  of  Her  iJiitaiiiiic  Majesty  aiiiionneed  that  theii^ient  of  the 
I'liited  States  and  lie  would  remain  in  I'aiis  at  the  disposition  of  the 
Tribunal. 

At  4  p.  HI.  the  TrilMiiial  adjoiirned. 

Done  at  I'aris,  the  Stli  of  .Inly,  lS<>;{,  and  sij;ne<l: 

77u  /'nsidnil:    Al.l'H.  1)13  roURf'KT-. 
The  Aijiiil  for  till-  t  iiilnl  Slotes :   .l(»nN  \V.  I'^oSTKU. 
'flic  Aijvnt  for  drvol  Urihihi :   ClIAIM.KS  II.  TUIU'EU. 
Thr  Scinlur;/:    A.  iMUEliX. 
Translation  eertitied  to  be  atciirate: 

„   ,,  '     (Jo- iSivr( tunes, 

II.  CL:iS\^(illAMi:,  ) 


PKOTOCOL  I,l\^. 
BTKiniNcis  FiioM  jrr.v  10  TO  AfcrsT  11,  1S9?». 

The  Tribunal  of  Arbitration  assembled  with  closed  doors,  all  the 
iiibitratois  beiiij;'  ]>reseiit.  on  INIuiiday,  July  lOth,  lS!t.'i,  and  deliberated 
during- successive  nieetiiius  until  Monday.  Aii<;ust  1  Ith,  inclusive,  upon 
the  (piestions  siibiiiitt'd  to  its  decision. 

Diirinj^'  these  deliberations  Lord  llannen  presented  the  following 
motion : 

That  the  award  of  this  Tribunal  be  jii\en  in  tlii'  foiiii  followiiif^: 

Whereas  by  a  treaty  between  the  I'liitetl  States  of  America  and  (Jreat 
r.ritain  sijiiied  at  Washiiii'tiMi  February  L'tHli,  1<S!L',  the  ratilicati(»ns  of 
which  by  the  (iovernme.its  of  the  two  countries  were  exchanged  at 
London  on  ^lay  the  7th,  ISDl.*,  it  was.  amongst  other  things,  agreed  and 
concluded,  that  the  (luestioiis  which  had  arisen  between  the  (lovern- 
meiit  of  the  United  States  of  America  and  the  (lovernmeiit  of  Her 
Ihitannic  Majesty  conceiiiing  the  Jurisdictional  rights  of  the  United 
States  ill  the  waters  of  JJeiing  Sea,  and  concerning  also  the  preserva- 
tion of  the  fur  seal  in  or  lial»itiially  resorting  to  the  said  sea,  and  the 
lights  of  the  citizens  and  subjects  of  eitli  'r  country  as  regards  the  tak- 
ing of  fur  seals  in  or  habitually  lesorting  to  the  said  waters,  should  be 
submitted  to  a  Tribunal  of  Arbitration  to  be  <'(nnposed  of  seven  arbi- 
trators, who  should  be  appointed  in  the  following  nianner,  that  is  to 
say,  two  should  be  iiained  by  the  ['resident  of  the  United  States;  two 
sliouUl  be  named  by  Her  lUitannic  Majesty;  His  Ivxcellency  the  I'resi- 
dfiitof  the  French  Tiejiublic  should  be  Jointly  re(iuested  by  the  high 
I'ontractiug  parties  to  name  one;  His  Majesty  the  King  of  Italy  should 


52 


i'i;o'i'()('(>i,s. 


1k'  so  i'{mhi('s1('(1  t,)  iiiinic  (Hic:  His  .Majrsty  tlic.  Kiiij;- of  Swcdi'ii  iiiid 
Norway  should  he  so  rciiiicsicd  to  uaiiu'  one;  tlic  seven  ai'bitratoi's  to 
be.  so  named  should  l)e  juiisis  of  disl  iiii;iiislied  re]uitatioii  iu  llieir 
res|teetivc  eoiiuli  ies.  and  tlie  seieel  iu<i"  jtowi'is  slmidd  he  iiMpiested  to 
elioose,  if  possible,  Jui'isis  wlio  are  ae(iuaiiited  with  Hk^  I)u,nlish 
laii!nua,<;('; 

And  wheit'as  if  was  turt her  agreed  by  Arlich'  I!  <tf  the  saitl  treaty 
tiiat  tiie  arl>itrators  should  uieet  at  I'aris  witiiiii  twenty  days  after  the 
deli\<'ryof  t  he  eouiiler-ease  nieiilioiu'd  in  Article  1\',  and  should  pro- 
ceed iiiiparlially  aiul  eareliilly  to  examine  and  (h'eide  tiu'  «|uestions 
winch  had  been  oi'  shoidd  be  laid  belbre  them  as  in  tiie  said  Ireaty  ju'O' 
vidcd  OH  the  jiart  ot'  the  ( loveiiiments  ot'  the  I  nited  Slates  and  of  Her 
Uritauiue  Majesty  respeel  ively.  and  that  all  questions  considered  by 
the  'I'ribunal  includinii' t  he  liiial  decisi(»n  should  be  determined  by  a 
iuaiorit.>  of  all  the  arbitrators; 

And  whereas  by  Article  \' I  ol  the  said  treaty,  it  was  further  pro- 
vided as  Ibllows: 

111  ilccidiiin  the  iiimI  ti'iH  siiliinil  (i  il  Id  tile  .s.Lid  .iiliil  I'atiiis,  it  is  :i;;;i'i'il  tli.it  liii- 
I'cilliiuiiii;  liv<'  |iiiiiils  sliiili  III'  siihiiiii  tcil  l<i  tlirin  in  iiiilci'  t!i:il  llicii  nwiird  sliail 
(.•iiiliriU'c  ;i  (lisl  iiict  <liMir,ii.ii  n{i(iii  culi  nf  mi  id  li\  !■  |Hiiiils,  In  wit: 

t.  \\  li;.!  f\i-lu^i\  r  Jiilisdic!  ion  in  tin'  sc;i  niiw  kiinwn  ;is  IIh;  IJiTiii^-  Sim,  ;ind  wlial 
cxfliisi'.  I'  ri'^lils  ill  tlir  sral  li.sli.iirM  iliriiin  did  iiiissia  assiTt,  and  rxiTiisi"  pridr 
anil  up  to  llir  lilMC  III'  llu'  cissimi  ul    Alaska   In  tiir  lliitid  Slates' 

2.  Iliiw  far  wiTi'  1  lirsc  rlai  ins  (if  Jiiiisdifl  iiiii  as  In  I  lie  seal  lislinii's  !'iTii;;ni/i'il  and 
(•onci'dcd  l)v  (Jrcal  ISritain  .' 

:>.  Wasllic  liiidy  id'  walcr  now  known  as  llu-  lirriiiL;-  Sra  iinlndrd  in  llic  iiIira.M- 
I'aiMl'ii'  (•trail  as  Msi-i\  in  liif  I  real  v  id'  sj",  lulwri'ii  i.nal  lirilain  and  liiissia:  and 
wliat  liiilils,  il'aiiy,  in  tin'  Itrriiii;-  Soa  wcii'  Indil  ioid  rsi  liisividy  cxi'iiisrd  by  liiiissia 
iil'lci-  said  li'i'alv  ? 

I.  Did  nut  all  Ilir  rin'Iits  uC  K'nssia  as  In  jiiiisdiil  imi  and  as  to  tin'  sral  lisiiiTJos  in 
lii'riii.U'  Sra  cast  nl'tlif  watiT  lioandaiy  in  llir  triMt\  IuMwitii  llie  fnitcil  Stales 
and  liiissia  of  the  ;;iilli  of  Maieli.  ISilJ,  pass  iiiiiin|iaii'('il  lo  the  I'niled  States  under 
that  trea'v  .' 

,").  lias  (he  {"nileil  Stales  an>  iii;ht.  and  if  so  what  liiihl ,  of  iiroleei  !■  n  or  ]iro))- 
erlym  the  fur-seals  frei|neiil  iii;^'  ihe  iskinds  of  the  I'niled  Stale>  in  I'lerinj;  Sea 
when  sneli  stals  are  found  oniside  ti.e  nidinaiv  :!  mile  limit  .' 

And  wiiereas  by  Ailicle  \' 11  of  the  stiid  tieaty  il  was  further  a" rcH'd 
as  follows : 

If  tln^  delerminal  ion  of  I  he  fore^Miinj;  i|iie-liuiis  as  lo  the  e\eliisi\e  jiii'isdieiion 
of  Ihe  I'niled  States  shall  lea\e  I  .le  snlijeel  in  siieli  posiiion  that  Ihe  eoneiii  leiiee 
of  (ireat  liiilain  is  lll'(•e^sa^y  'o  ;  ne  I'siald  ishmeiil  of  ri'Linlal  ions  for  tlie  proper  pro- 
tee  I  ion  and  preser>.  al  ion  of  the  fur  seal  in  or  lialiil  iially  resori  inu'  to  I  he  l!eriii;n  Sea. 
the  arliilraiors  shall  then  deiermiiie  what  eoneiirrcnl  re'^nlal  ions,  outside  liie  jiiris- 
diel  ional  liinils  of  the  res  peel  i\  e  t  io\  eriiineiits,  arc.  iioei';'siiiy,  and  o\  i-r  wlia  t  w  a  ters 
such  icynl.'ilioiiH  should  iNitiid. 

'I'llc  llijih  colli  r.-ieliliL;  parlies  furtherniore  a;;ree  (o  i pei.ite  in  seeiirillH'  'ln'  adlie- 

sioii  of  (illier  pow  (M's  lo  siieh  rej;nIallolis. 

And  whereas  by  Article  \' 1 1 1  id'  the  said  treaty,  after  recilin.i;'  that 
the  hio'h  contracting'  parties  had  i'ltiinil  themselves  uiiiible  to  a,u'ree  uiion 
a  reference  which  shoidd  include  t he  (jiiesiioii  of  the  liability  of  i-ach 


(li'ii  iiiid 
alors  to 
in  tlieii- 

tested  to 
lOii.iilisli 


(I  treaty 
after  the 


Ml 


1(1  pro 

|iiestioiis 

t'at.v  l>i<>- 
1(1  of  Her 
hv 


(leicd 


lied  by  :i 


tlier  l»io- 


il  tli.il  ili<- 
wiiitl   sliull 


I,  ;iu(l  wliul 
I  rtisc  jiriiPV 


lUlll/.i'il  .iii'l 


I  lie    l)liril.sii 
v'lissia;  mill 


il  hv  lviissi;i 


ii^licncs  III 
itcil    Sliill'S 


ftalcs  mil 


ll'idiii;;    Scii 


lier  agreed 


Ijiilisiliilioii 
(ini'iii  relief 
||iriiiM'r  i>i'ii- 
llii'iiiij;  Sea, 
|lr  I  111'  iui'is- 
liat  waters 


tlie  aillie 


liliiiiH'  that 
Lree  upon 


I'ROTOCOT.S.  1)6 

for  tlio  iiijmies  allcfjed  to  havo  hceii  sustained  by  tli(M)thor  or  l»y  its 
ciri/.ens  ill  conneelion  with  the  elaiiiis  presented  and  iirji'ed  by  it,  and 
that  "'they  were  solicitous  tliat  tlds  siihordinat  <piestioii  should  not 
inlerriipt  or  loii.ucr  delay  the  siilMiiissioii  and  deteiniination  of  the  main 
(|uestioiis,"  the  hi.i;ii  eontiaetiny  parties  agreed  that  ••either  of  them 
nii.yhr  submit  to  the  arlMtrat(.'.s  any(piestion  (d'  tad  iiixolved  in  s:iid 
elaiiiis  and  ask  for  a  liiidinu'  ti>ereo!i,  the  (piestioii  of  the  liability  (d' 
either  (lovernmeiit  upon  tlie  faeis  loiiiid  to  be  the  subject  of  furl  her 
neuofiation"; 

And  whereas  the  I'resident  of  th(^  I'liitod  States  of  America  named 
\\\v  Honorable  ,)(din  M.  Harlan. -iiistice  of  the  Supreme  Court  of  tiio 
I'liiled   Stales,  and    the    Hoiioiabie  John    T.  Moriian.  Senator  of  Mi(^ 


I   iiited  States,  to  be  I  wo  ol   t  he  sail'  ar 


ii;ral'ir>.  and  I  ler  I'.i  itaiiuic  .Maj 


esiy  named  I  lie  b'iLvht  I  Imiorable  [,oid  I  iaiiiK  ii  and  Sir  Joim  'riiomiison, 
Minister  of  dustice  and  Attorney-t  ieiieral  lor  Canada,  to  be  two  of  the 
said  arbitrators,  and  His  llxcelleiiey  the  rrcsideiit  of  the  l-'reiudi  IJepiib- 
lic  named  the  ihiroii  Alplionse  de  Coiircel.  Senator.  Ambassad(n'  of 
i''raiice,  to  be  one  of  the  said  arbitratois,  and  His  Majesty  Hie  i\in.u'  of 
Italy  named  the  Mar(|iiis  I'lmilio  N'isconti  \"eiiosla.  former  Minister  (d" 
iMuei.u'u  Affairs  and  Senator  of  the  Kiimihuu  of  Haly.  to  be  one  of  the 
said  arbitrators,  and  His  Majesty  the  l\.in.u' of  Sweden  and  Norway 
named  Mr.  ( ireu'eis  ( iram.  !M  iiiister  of  Stale,  to  be  one  of  the  said  arbi- 
trators; 

And  whereas  We.  t  li(>  said  .\  rid  trators.  so  naiiied  and  ai»iH»inled.  hav- 
in,u'  taken  upon  onrseh cs  i  he  burden  of  the  said  arbitrali(m,  and  haviiifj 
duly  n)el  at  i'aiis.  pi.i;ee(led  imjiai  fiall.\  and  carefully  to  evaniine  and 
decide  all  the  imesl  ions  sulimilted  tons,  the  said  arbitrators,  under  Hm^ 
said  treaty  or  laid  lielbre  us  as  provided  in  the  said  treaty  mi  tiie  jiart 
(d'  the  (io\  einineiits  of  Her  Hritaniiic  Majesty  and  tiie  Ciiiied  States, 
respect  i\('ly : 

Now  We.  the  said  Arhitralors.  ha\  inu'  impartially  and  carefully  e\am- 
iiied  the  said  (piesi  joiis.  di»  in  like  manner,  by  liiis  (air  award,  decide 
and  detei'iiiiie  tiie  said  (iiiestions  in  manner  Ibllowiiii:-,  that  is  to  say, 
we  decide  and  determine  as  to  the  live  points  'entioiie(l  in  A'lide  \'l 
as  to  which  our  Award  is  to  enduare  a  distii'cl  d«>cision  upon  ea(di  (d' 
I  hem : 

As  *o  (!,e  first  of  the  said  li\c  points.  We.  the  said  Arbitrators,  do 
decide  and  detei  iriiie 

As  to  the  second  of  the  said  live  points,  \N'e.  I  lie  said  Arltit  lalois.  do 
ihM'ide  and  deteriniiie— — 


.\s  to  the  third  of  the  said   live  points.  We.  the  said  Ai  liil  rafors,  do 


decide  and  delermino 


y  i> 


I  each 


As  to  the  foiiifh  id"  the  said  fnc  iioinls.  \\ C,  the  said  Ariiilrators,  do 
decide  and  delerinine  

As  to  the  liflh  (d'  the  said  li\('  poiiils.  We,  the  said  Arbitrators,  do 
dtM',ide  and  dotermiue 


54 


PROTOCOLS, 


And  wliorcas  the  aforesiiid  dofonniiiiitioii  of  tlio  forogoiiip;  qucstioiia 
as  to  the  exchisivo  Jinisdictiou  of  the  Uiiiled  States  nieiiHoiied  in 
AvticU",  VI  leaves  the  siibjeet  in  sncli  a  jxtsition  that  tlie  concurreiu'e 
of  Great  Britain  is  necessary  to  the  estahhshment  of  rcjinlations  for 
the  proper  protection  and  preservation  of  the  tni'  seal  in  oi-  haliitnally 
resorting  to  the  IJeriiijj  Sea,  We,  tlie  said  Arbitrators,  (h)  thcrenpon 
determine  that  the  foHowinj;'  eoncnrient  reji'nlations  outside  the  Juris- 
dictional limits  of  th(>  respective  (lovernments  are  necessary  and  that 
they  should  extend  over  the  waters  hereinattcr  niciiti<ui<'d:  tha.t  is 
to  say 

And  whereas  the  Government  of  Her  Britannic  Majesty  did  submit 
to  tiie  Tiibunal  of  Arbitration  under  Article  Vlll  of  liie  said  treaty 
certain  questions  of  fact  involved  in  the  claims  refeiied  to  in  tlic  said 
Arti(!le  V'lII  and  did  also  submit  to  us,  the  said  Tribunal,  a  statement 
of  the  said  facts,  as  follows;  that  is  to  say 

We,  the  said  Arbitrators,  do  decide  and  <letcrmine 


And  whereas  eacli  and  every  (incstion  wliicli  lias  been  considered  by 
the  Tribunal  has  been  determined  by  a  majority  of  all  tlie  arl>irrat()rs: 

Xow  we  do  declare  this  to  be  the  fuial  decision  and  award  in  writing 
of  this  Tribunal,  in  accordance  with  the  treaty. 

Made  in  duplicate  at  Paris  and  siji'iied  by  us  the day ,  in 

the  year  IS'J.'}. 

After  an  exchange  of  views  betvreen  the  Aibitrators,  it  was  agreed 
that  the  forn>  ]»vei)ared  by  Lord  llannen  be  adopted  as  a  basis  for  the 
Winding  cf  tiie  award. 

The  preamble  of  this  form  having  been  unanimously  voted,  without* 
mod'tieation,  the  arbitrators   ])assed  to  the  (MUisideialion  of  the  live 
l)()ints  juentioned  in  Arti<de  VI  of  the  treaty  of  Fel)riiary  LM^tli.  ISHi', 

As  lo  the  first  point,  relating  to  the  riglds  exercised  or  ciaiuied  by 
llussia  in  Bering  Sea,  the  arbitrators  recoginze  tliat  a  distinction  must 
be  made  between  ditferent  periods. 

After  some  discussion  as  to  the  events  which  pnn-eded  the  ukase  ot 
1Si>l,  it  was  decided  that  these  might  be  left  aside  as  not  being 
material  to  the  decision  of  the  questions  submitted  to  the  'riil)unal. 

in  consetpience,  Baron  de  Coureel  i)resented  the  following  {sioject  of 
decision : 

Hy  the  iii<iiso  of  18L'l,  ]{iiHsiii  diiiiricd  Juiisdiftioti  in  tlic  sea  now  linnwn  as  tlw 
Hciinji'.s  Sen,  to  tli(!  extent  of  100  ItaliiUi  miles  from  tin;  eoaHts  and  islands  liel(Mii;in,i; 
to  lior,  l)ut,  in  tlio  enni'He  of  tlie  neji'otiations  \\lii(li  led  to  tin*  eoniliision  of  tin' 
treaties  of  ISL'l  with  tlic  United  Stat<s  and  of  182."  with  fiieat  Hiitain,  l.'iissia 
admitted  that  lierjnrisdiefion  in  the  .said  sea  should  lie  restiieted  to  the  reach  of 
eaanon  shot  from  shore,  and  it  aiiju'.irs  that,  trom  that  lime  u\\  to  the  time  of  the 
cession  of  Alaska  to  the  liiited  States,  K'ussia  nexcr  asserted  in  fact  or  exeicised 
any  cxelusivejnrisdii'tion  in  llerin<i"s  Sea  or  any  exeliisivc  ri^lits  in  the  seal  lis]i(rie.s 
therein  beyond  tlio  ordinary  limit  of  tiiritorial  waters. 

This  was  adopted  by  a  nmjority  eomint.sed  of  I'.aron  de  Coureel,  ^Fr. 
Justice  Harlan,  Lord    IlanniMi,  Sir  .roliii   'fli<anpson,  MaiMpiis  Viseonti 


PROTOCOLS. 


55 


ucstiona 
oiiod  ill 

tioiis  for 
iltitiially 
icrcuiion 
lie  Jnris- 
»ii(l  that 
tlii'.t  is 

il  sulnuit 

id  trciity 

tlie  siiid 

hitonieiit 


(loi'cd  by 
)itriU()rs: 
I  writiiij;' 


-,  in 


is  il  Li  reed 
is  (or  tlu; 

,  witlinut.' 

tlic  live 

IS!  12. 

imed  by 

ion  must 

uknsc  ot 
tt   bt'iiiji' 
nil;)], 
loject  of 


.11  as  till' 
l)fl(iin;iiij^ 
oi;  of  till' 
n.    li'iissiu 

It'Mcll  of 

inc  of  llio 
cNci'ciscd 
1  lislic'i'ics 

•col,  ^Ir. 
Visconti 


Vcnosta  and  'Sir.  Grej^ers  (Jrani.  Senator  Mor^jan  voted  a.uainst  it. 
reserving^  unto  himself  to  propose  an  amendment,  wlien  tlie  second  point 
would  have  been  considered. 

As  to  the  second  of  the  said  Ave  points  mentioned  in  Article  Vi.  tlie 
following'  decision  was  adoi)ted  by  a  majority  composed  of  tiie  I'.aron 
de  Courcel,  Mr.  Justice  Harlan,  Lord  llannen,  Sir  tlolin  Tliompson, 
^Marcjuis  Visconti  Venosta,  and  Mr.  Grcf-eis  (Irani: 

Great  Britain  did  not  rtn'oyiii/.o  or  concede  any  claim,  npoii  tlif  part  of  l»nssia.  to 
exclusive  Jurisdiction  as  t<>  tlic  seal  fisheries  in  Bering;  Sea,  outsidi'  of  ordinary 
territorial  waters. 

Senator  Moijjan  voted  ajiainst  and  jnesented  tliefollowiui;  motion  as 
a  substitute  for  the  decisions  as  to  the  two  lirst  points: 

1.  From  the  time  tliat  IJnssia  first  discovered  and  occu]>ied  Uerin.u'  Sea  and  the 
coasts  and  islands  thereof,  until  slie  cided  a  iiorlion  thereof  to  the  I'nited  States, 
she  claimed  the  seal  fisiiciies  in  lierini;  Sea  and  exercised,  exclusively,  the  ri,s;'lit  to 
the  usufruct,  and  to  own  the  ^irodiict  of  such  seal  fisheries,  and  to  ))i'otcct  the  same 
a^jainst  lieinjr  interfered  with,  in  those  waters,  l>y  the  ]>e(i|)le  of  any  otiier  country; 
and  also  the  exclusive  Jurisdiction  th.if  was  I'ound  uecessary  for  thuKi'  |inriioses  ;  iiid, 
iilso,  the  exclusive  Jurisdiction  to  rej;iilate  the  hiintiiiij;  of  fur-seals  in  those  waters; 
and  to  jjrant  the  riijht  of  hunting;'  them,  to  her  own  suhjects. 

2.  'I'he  attitude  of  Russia  towards  the  fnr-seal  fisheries  in  lierinj;  Sea,  as  desi-rihed 
above,  beiujLj  known  to  (ireat  Jlritain,  she  ac(|uiesc<.d  in  the  sann^  witlnnit  ohjection. 

This  inotioii  was  negatived  by  all  the  iirbitrators  except  Senator 
]\1  organ. 

Astothe  third  of  tliesaid  five])oints  mentioned  in  Article  VI,  it  wtis 
agreed  that  the  two  questions  therein  c 'itaincd  slumld  be  considered 
sej)arately. 

On  the  lirst  of  these  questions  the  following'  decision  was  iinaininoiisly 
adopted : 

The  body  of  water  now  known  as  tin*  Herin;;  Soa  was  inclm'ed  in  tin?  ]  'rase 
"I'acitic  Ocean"  as  used  in  the  treaty  of  ISLT)  between  tire;it  Britain  and  l.'iissia. 

On  the  second  of  liiese  questions  the  following  decision  was  :ulopted 
by  a  majority  composed  of  Baron  de  Gourcel,  Mr.  Justice  ILiii ! m.  Lord 
lianiien,  Sir  .Tohn  Tliompson,  IMarcpiis  N'iscoiiti  ^'eIlosta.  and  Mr. 
(Iregers  Gram,  Senator  lAforgiin  voting  in  the  negative: 

No  exclusive  ri^jlits  of  Jurisdict  ion  in  lierinu;  Sea  and  no  excliisi\c  rinlits  as  to  ^eal 
lisheries  therein,  were  hidd  or  exercised  by  Unssia  ouisidu  of  ordinary  teniiorial 
waters  after  the  treaty  of  182i), 

Baron  de  Courcel  remarked  thtit,  in  iidlieriiig  to  tlie  (ierisiitii  wliicli 
had  Just  been  ado))ted,  his  intention  is  to  stiite  the  i)osi(ioii  held  l»y 
I'ussiii  in  tlu>  Bering  Sea  <»nly  in  tis  ftu"  as  it  has  been  ])reseiited  for  the 
considi'ration  of  the  Tiibmial  of  Arbitration  by  the  two  (io\  (Miuiients 
who  have  (HUistituted  tjie  stiid  Tribumd,  antl  that  he  l)y  no  means 
intends  to  jirejudge  the  ii|»pre('iation  made  bj'  llussiii  herself,  as  that 
l)ower  has  not  beet,  heard  by  the  Triltniiiil.  nor  placed  in  such  a  situa- 
tion as  to  mtike  her  views  known  to  the  same. 


nfi 


rii'OTorMiT.s. 


As  to  tlic  loin  til  ol"  tlic  said  livr  iK)iii(s  nwiitioiioil  in  Article  V^I,  tlie 
lollowiiiji' decision  wiis  jdoposcd  l>y  liord  llaniicn: 

'i'li.'il  all  the  lii^'lil-i  of  K'lissia  as  to  Jiirisdictinn  ami  as  lo  the  soal  lislicrics  in 
Hciiiif;  Sea  cast  ol'  llic  watci-  iKiiiiidary  in  llic  Ircaly  liclwccn  llu;  llnitcti  Slatofi  and 
It'nssia  of  llic  ^iOtli  Maiclj,  l^<ti7,  did  ]iass  iininipaiicd  to  llu;  I'liitcd  Status  niidor  tli» 
said  t  iraty. 

Tliis  |H'o|)i(siti(tii  was  uitaiiiiiioiisly  adoplcMl. 

As  to  (lie  littli  of  the  said  live  i»oiiils  inciitioiicd  in  Article  VI,  tlie 
lollo\viii<i' decision  was  proposed  liy  liord  llannen: 

The  llniltd  States  lias  not  any  ri<jht  of  iiioteet  ion  or  propeily  in  the  I'nr  seals  f'rcr- 
(picMliiiii  the  islands  ol'  Ihti  I'nited  States  in  I'evin;;  Sea,  when  sneli  seals  are.  lonml 
oiilside  the  ordinary  !< mile  limit. 

Tliis  proposition  was  adopted  by  a  majority,  <'omposed  of  Uiiroii  dc 
('(iiircel,  Lord  llannen.  Sir -lolin  'riionipson,  Msinpiis  Viseonti  Veiiosta, 
and  Mr.  (iiei^cis  (irain.  Mr..liislice  Harlan  and  Senator  I\lor}?an  voted 
in  tlie  negative,  and  stated  tliat,  in  tlieir  opinion,  tiie  I'nited  Sttites 
owned  the  iierd  of  seals  wliieli  frecpiented  tlu'  islands  of  the  I'liited 
States  in  Uerinj^'  Sea,  and  were  entitled  to  employ  for  tlieir  protf'ction, 
wiien  found  outside  the  ordinary  .'?inile  limit,  the  same  means  that  an 
individual  miuht  le.onllyemploy  for  the  jn'otectioii  of  his  projierty.  They 
also  staled  that  in  their  o])ini(Ui,  iiidei»endently  of  any  riohtof  i)roperty 
in  the  fur  seals  themselves,  the  I'liited  States,  as  the  owner  and  pro 
luietor  of  tlie  indiislry  eonducted  (.n  the  IMihilof  Islands,  and  which 
industry  eonsisled  in  takiiio'  fur  seals  on  those  islands  1'or  connnerciiil 
puijioses,  had  the  ri.uhl  to  prote<!t  these  animals  aji'ainst  beiiio- taken 
in  the  open  waters  of  lierinu' Sea  and  the  Ncu'th  I'aeitie  Ocean  outside 
of  territorial  waters,  by  iiny  met  hod.  such  as  pelaoie  sealinj;',  which 
would  necessarily  exterminate  the  race. 

Senator  Moi^nan  tliereu|ion  suiuiiitted  the  following' motion : 

I  |)ro|inse  Id  amend  the  |iropos<'il  award  and  <l<'rree  by  inseitinu',  alter  tho  W(trds 
not  innj,  the  word  sjicrinl,  ;ind  at  the  end  of  the  proposed  award  and  <leeree,  tho 
I'ollowini;  wolds:  "  lu'iiauil  llir  riiilils  lluil  all  iiiiliDiix  li<ir<-  »«(/«'/•  llic  iiilcniiiHoiial  laiv,  in 
riKjiicl  III'  sil j'  iirotcrliDii  mnl  f:flf(Ji  I'ciisc." 

SdIIimI   II ntire  a\\  ard,  as  to  ]ioint  li\e  in  .\  it  icle  \' I  of  the  treaty,  would  vo.ld  ilH 

follows.  \i/, ;  .(«  Ill  llic  Ji/lli  iif  llic  Kiiiil  iiiiiiiis.  irc,  luiiiiiii  iiKijiirilii  of  llic  sniil  aihitra- 
liirn.  ill)  (liiiilc  mill  ill  Irniiiiic  tlnil  llic  I'liilcil  Slnlcs  has  mil  niiii  sju,  inl  lii/hl  uf  prolccl'utn 
DC  jiviijuclii  ill  Ihc  fur  mils  I'rciiin  nliiiii  llu  i.iliiiiils  of  llic  I'liiliil  Shihs  in  lIcriHt/  Sea, 
II  lull  such  .-.nils  lire  foiniil  iiiilniili  llic  iiriHiiiirii  .l-iiiilc  liiuil,  hciioiid  llic  rifililn  lliat  all 
)i(iliii))s  liiirc.  iniilir  llic  iiilcniiiliiuitti  lair,  in  rcupccl  of  mlf-priilecUnn  and  Kclf-dcl'cnuc. 

^Ir.  .lust  ice  Harlan  and  Senator  Morgan  voted  in  favor  of  this  amend- 
iiieiit.  statinii'  thai  as  their  \iews,  iis  iibove  set  forth,  upon  the  (piestion 
of  lu'opeily  iind  jirotcctioii,  were  not  accepted  by  tlie  nmjority,  they 
would  prelcr  the  answer  to  the  liflh  point  to  be  in  the  words  indicated 
by  the  last  amendmeiil  proposed  by  Senator  Morgan,  rather  than  in 
the  words  iippi'ove(l  by  the  iiiajfU'ity. 

I.ord  Hanneii.  Sir  .lohn  'riiompson.  Mari|uis  N'isconti  N'eno.sla,  and 
Mr.  (iregers  (irain  voted. agaiiisl  the  proposed  an  endnieut. 


pifccroroLS. 


67 


ihal  all 

''I'l  line. 


hail   in 


;i.  aixl 


Baron  i\o  Conrct'l  abslaincd  ri(»in  \utin.y. 

In  constMiiience  the  iimcndiiicnl  proposed  by  Senator  ]\roi'jjiin  was 
rojoc.ti'd. 

Mr.  (Irt'jiors  (liain  licrc  oxpicsscd  tlic  desire  that  if  lie  well  under- 
stood that  the  Tiiliunal,  in  answering':  as  it  lias  done  the  loie^oing 
(piestions,  did  not  ])n»pose  to  de<Mde  what  are,  aeeordin;;  to  I  lie  jirinci- 
jtles  of  international  law.  the  ordinary  limits  (»!'  territorial  waters. 

The  arbitrators  eoneiir  that  tiiey  I'o  not  ieei  tlieiiiselves  ealled  on  to 
decide  what,  ae.eordinj;-  to  the  i)rin(iples  of  international  law,  aie  the 
oi'dinary  limits  of  territorial  waters. 

Those  limits  have  been  assnnied  for  the,  ]»nri)osos  of  the  award  to  bo. 
.'i  ndles  from  the  coast,  in  aecorfhineci  with  the  wording  of  tlie  tilth  (pies- 
tion  of  Arti<^Ie  VI  of  the  treaty. 

Senator  jNIorj^an  here  asked  that  the  foll()win{if  nnnion  bi'  take  n  into 
consideration : 

I  iii()V('  tliat  tlio  Triliiiiial  of  Arl>itr;itiiiii  jiidcccij  in  such  oiilcr  as  may  lie  jirniicr, 
licfoiT  a  (iiiaj  a\var<l  is  iiiadr  in  tlic  rase,  to  consider  and  declare  tlic  liulils  of  tli(\ 
citizens  and  snl).|('('ts  of  eillHT  country  as  iceaids  tiie  taliin;;'  of  I'nr  seal  in  or  resort- 
inji;  to  llie  waters  of  Jicrinjj;  Sea. 

Tills  ini|iiiry  ami  decision  inclndes  IIk;  entire  lierd  that  resorts,  lialdt  niilly,  in  liio 
sninnier  and  autiinin,  to  tins  islands  of  St.  I'anl  and  St.  (icoiee,  in  licrin.n  I^'a. 

Tlio  iinswiTs  jiiveii  to  the  livo  ])oints  stated  in  Article  \I  of  tlic  treaty  do  not,  in 
my  jud^jiiiont,  answiM-  tlio  (|iiesti<)n  above  stated,  whiidi  tlit!  treaty  proviilcH  shall  l>o 
Hnhiiiittcd  to  the  'frihnnal  of  Arhitration  :  and  an  award  thatdoes  not  specilieally 
ivnswer  that  ([nestion  can  not  lie ''a  full,  jx-rt'cct,  and  linal  seltleiiicnt  of  .all  the 
<|n<'sti<)iis  referred  to  tlu'  arhitijitioii." 

Iwonld  ])roe(M'.(l  to  ))oint  oat  the.  'irminds  and  reasons  on  which  I  liase  this  mot  ion, 
hut  I  am  awan;  that,  in  the  ())diiioiis  delivcM'ed  l)\  a  majority  of  the  arhitr.ators,  Ihi'y 
consider  piiher  tiial  tliis  ipiestion  is  ni>t  re(|iiii'cd  hy  the  treaty  to  he  s|i('iilically 
aiiaweriid  or  that  it  has  licin  answeitsd,  in  ellect,  l>y  a  decision  nl'  a  majorjt.v  of  tho 
Trihiinal  upon  the  lii'tli  jioint  stated  in  .\rtiile,  \'l  of  the  trcity.  under  which  the  'fri- 
bunal  is  actinfj. 

This  motion  gave  ri.se  to  a  dcbtite. 

Mr.  Justice  Iliirliin  and  Senator  Mor<i'iin  voted  for  its  adoption. 

Baron  de  (.lourcel.  Lord  Hannen,  Sir  .John  Tlioiiiiison,  Mai<inis  Vis- 
ccniti  Venosta,  and  Mr.  (Irej^ers  (Irani,  coiisl  itiiliiio-  a  majority  of  the 
arbitrators,  considered  that  the  answers  to  all  the  (niestions  referred  to 
in  Article  I  of  the  said  treaty  tne  to  lie  f<)niid  in  the  decisions  which 
Inivc  been  rendered  upon  the  live  jtoints  mentioiie(l  in  Article  \'I,  and 
voted  iif<'ainst  this  motion. 

In  conse(|\ience,  the  motion  wits  rejected. 

The  arbitrators,  hiiviii.n"  reached  this  i»oint  of  tlicir  deliberations,  con- 
enrred  in  holding'  tlnit  the  decisions  reiidereil  by  llieiii  on  the  (|iiestioiis 
its  to  (he  exclusive  jurisdiction  of  the  liiited  Stiites,  ineiitifmed  iij 
Article  \'I  of  the  treaty,  "letive  the  snliject  in  such  position  tlmt  the 
cont'urrence  of  (iretit  IWitain  is  necessary  to  the  estai)lisliinent  of 
re^iiliitions  for  the  propcf  jirotcetioii  and  preservation  of  tho  fui'  seal 
in  or  habitually  resorting  to  the  neriiifj-  Sea." 


58 


ruoTO(;oT.8. 


II 


III  coijsoquoiK'O  they  <l('ciiU'(l  t(»  pass  (o  tlie  coiisidoriition  of  tlie  con- 
current rcjiuliitioiis  ciilled  loi'  by  Article  VII  of  the  treaty. 

Mr.  Justice  Ilarhui  pren-iitcd  tln^  rollowinj;'  diatt  of  resolution: 

Hcsolrcd,  That  tlii^  piirpiisc  of  Aitifle  VII  oi'  tlic  treaty  is  to  secure,  in  any  and  all 
events,  tlie  iirojier  jirotection  and  ])reservation  of  tlie  Iierd  of  seals  frequeutinj;  tlio 
Prildlof  Islands;  and  in  the,  frandiij;-  of  re^iihitioiis,  under  the  trt'aty,  no  extent  of 
ptdaj>i(;  seaiinf;  should  be  allowed  which  will  seriously  endanger  the  acconii)lish- 
inent  of  that  end. 

Senator  M():'.!;au  and  Mr.  .Justice  TTarhui  voted  for  the  ad(ti)ti()n  of 
tliis  rcsohition. 

Lord  llaniuMi  and  Mr.  (Irefjcrs  Gram  dechired  that  they  abstiiined 
from  voting-  because  they  found  the  proposition  submitted  to  be  of  too 
abstract  a  cliaracler. 

Sir  -John  Thon)i)S()n  declined  to  vote  on  the  foHowiuft',  amoujj;  other 
{jronnds:  "That  the  treaty  does  not  };ive  power  to  tlie  Tribunal  to  make 
the  provisions  which  may  be  ne(;essary  in  nnij  nud  all  events  for  the 
]»reservation  of  the  seals,  notably  as  to  the  preservation  of  the  seals 
on  their  breedinj^'  grounds." 

Mai(|uis  Visconti  Venosta  voted  aj^ainst  the  pioposition. 

He  remarked  that,  in  order  to  secure  the  j)reservation  of  the  fur  seals, 
the  rcf^ulations  ou.ulit  to  provide  a  system  of  enac-tments  ai)plical>le  to 
the  whole  area,  where,  on  land  as  well  as  at  sea,  is  develoi)ed  the  life 
of  the  seals  resiUtinj;'  to  l>ciiii,y  Sea,  and  to  be  equally  accepted  by  all 
nations  the  citizens  of  which  might  compete  in  pelagic  sealing.  Such 
regulations,  however,  would  go  beyond  the  iiowers  of  the  Tribunal  as 
defined  by  the  treaty. 

The  responsibility  of  the  arbitrator-  as  to  the  result  of  their  labors  was 
necessarily  bounded  by  the  limits  of  their  mandate;  they  might  simply 
])reseribe  such  measures  as  they  would  judge  consistent  with  the  cir- 
cumstances and  with  the  decisions  which  they  might  have  taken  on  the 
(ptestious  of  right,  and  express  the  wisli  that  these  regulations  receive 
their  necessary  complement  witliin  the  limits  of  the  territorial  jurisdic- 
tion of  the  two  countiics,  and  that  they  become  the  object  of  an  under- 
standing with  the  other  nations. 

Uanm  de  Courcel  voIcmI  against  the  proposition,  because  he  looked 
upon  it,  as  did  Lord  llannen  and  Mr.  Gregers  Gram,  as  being  too 
abstract,  ami  also,  because  in  his  opinion,  the  treaty,  when  it  prescribed 
the  establishment  of  regulations  for  the  pfoper  i)rotectiou  and  preser- 
vation of  the  fur-seals,  intended  that  given  circumstances  should  be 
taken  into  account;  his  view  was  that  the  preservation  of  this  species 
of  animals  should  be  legulated,  not  in  the  absolute  interest  of  the 
spei'ies,  but  in  the  interest  of  the  human  industries  of  which  it  is  the 
object,  without  the  Tribunal  having  to  distinguish  between  the  nature 
of  these  dillen'nt  industries,  whether  they  be  exercised  on  land  or 
whether  they  be  engaged  upon  at  sea,  and  without  it  Laving  to  favor 
one  to  the  detriment  of  the  other. 


PROTOCOLS. 


59 


ill  as 

was 
ni)ly 
cir- 
the 
'cive 
>(lic- 
ulor- 

)ked 
too 
il)etl 
eser- 
(1  be 
ocies 
the 
tlie 
1*^11  re 
(I  or 
avor 


In  eonsofnieii(!e,  the  resolution  oiferod  by  Mr.  Justice  ITarkm  was 
rejected. 
Mr.  Justice  Harlan  then  presented  the  following'  motion: 

Tliis  Tribmiii]  lias  powor,  iiinl  it  is  its  duty,  under  the  treaty,  to  prescribe  such 
coiK'urrcnt  rcj^iilatioiis,  eoveiin^  tlie  waters,  outside  tiio  jurisdictional  limits  of  tho 
two  countries,  of  both  lieriii^;  Sea  and  tlie  North  I'acilic  Oci'an,  traversed  by  the 
fur-seals  in,  or  bal)itual!y  resoitiii;;  to,  lieriu;^  'Sea,  as  may  bo  found  necessary  for 
the  proi)er  prot(!ctiou  and  i)reservation  of  such  seals,  oven  if  such  regulations,  whou 
saiiet  ioned  l)y  lei;islation  of  the  two  fJovernments,  slionld,  by  reason  of  their  (^xjiress 
l)r(tvisions,  or  by  tiieir  ])rai'tical  operation,  result  in  iireventiiig  tho  hunting  and 
taking  of  these  seals  during  the  seasons  when  the  condition  of  said  waters  admits 
of  fur-seals  being  taken  by  ))elagie  siialers. 

Seiiittor  ]\Ior<>an  and  ^fr.  Justice  llailan  voted  in  favor  of  this  motion. 

Lonl  ilannen  declined  to  vote  on  the  j;round,  amonj;st  others,  that 
the  arbitrators  are  not  called  on  to  vote  on  abstract  tiuestions  apart 
from  the  facts  as  to  Avhich  their  decision  is  to  be  jiiven. 

Hir  John  Thomi)soii  declined  to  vote,  for  the  following,  among  other, 
reasons: 

Tiiat  the  views  of  the  several  arliitratorson  this  and  other  abstract(iuestions  relat- 
ing to  regulations  have  been  better  expressed  during  the  deliberations  of  the  ])ast 
weeks  than  in  tho  form  of  th(!  present  resolution, 

j\Ir.  dram  abstained  from  voting  on  the  ground  that  the  resolution 
pro])osed  will  have  Ibi  him  no  ])ractical  value,  its  his  vote  on  regula- 
tions will  not  in  any  way  be  alTccted  by  such  (juestion. 

jManpiis  Visoonti  Venosta  likewise  abstiiined  from  voting. 

He  believed  that  the  treaty,  in  its  Article  YII,  had  in  view  the 
restriction  and  not  the  j)rohibition  of  the  exer(;ise  of  the  right  of  pelagic 
sealing  on  tlie  high  sea.  lie  was  disposed  to  vote  for  ellicacious  meas- 
ures in  order  to  prevent  what  might  be  essentially  destructive  for  tlio 
species  in  this  lishiiig.  IJut  after  having  recognized  the  right,  he  did 
not  feel  authorized,  by  the  interpretation  of  the  treaty,  to  suppress  it 
practically,  either  by  an  absolute  prohibition  or  by  measures  which 
would  be  e(]uivalent  thereto. 

Baron  de  Courcel  might  agree  to  the  principle  expressed  in  the 
motion,  but  declined  to  vote  upon  it  as  Iwing  purely  abstract. 

The  motion  was  in  consoiucnce  not  adopted. 

The  Trilainal  tiicn  jiroceeded  to  the  drafting  of  the  text  of  the  con- 
current regulations  wliicli  it  was  charged  to  determine  by  virtue  of 
Article  VII  of  the  treaty. 

Mr.  .Ttistice  Harlan  submitted  the  following  draft,  of  which  Senator 
jNIorgan  expressed  his  aj)proval: 

AiiPici.K  1.  Xoeiti/en  or  subject  of  the  United  States  orfJreat  liritain  shall  in  any 
manner  kill,  capture,  or  pursue  anywhere  u)i()n  tlio  se;is,  within  the  limits  and  bound- 
aries next  hereinafter  pri'ScrilxMl  for  the  operation  of  this  regulaiiou,  any  of  tho 
animals  commonly  calltMl  tnrseals. 

Airr.  2.  The  foregoing  regulation  shall  apply  to  and  extend  over  all  tliose  Avaters, 
outside  thi!  jurisdictional  limits  of  t  lie  above  mentioned  nations,  of  the  North  Pacilio 


60 


PROTOCOr.S. 


Oci'.'iii  iiiiri  ncriiig  Sen  wliicli  ;irc  iikiIIi  of  (Ik^  tliirty-liffli  pnrallol  of  north  Intitnde 
anil  ciist  of  IIk;  one  luiiKlicd  anil  cijjhtirlli  niinliliiin  of  loiii;itiiili'  from  (irci-nwirli. 

AitT.  3.  I'lvi^ry  vi'ssi'l  or  person  oll'rndin^t  .•ij;;aiiist  tlirsi'  n'iiiilatioMH  inny  lio  si'i/cd 
and  driaint'd  Ity  tlm  naval  or  iliii.\  lomniisNionrd  ollicrrs  of  I'ltlicr  ttic  I'nitfil  Statrs 
or  (in-af  liritaiii.  Imt  tliry  sliajl  lie  lianilt'il  ovt^r  as  soon  a.s  ))ra(t  ical)l<!  to  tlic  autlior- 
itics  of  till'  nation  to  which  thcv  rcs|ifctivily  lii'lony;,  wlio  alone  shall  havi-  jnrisilii-- 
tion  to  try  the  olfcnse  and  inijiosc  ]i('naltirs  for  the  same.  'I'hc  witnesses  and  proof 
neeevsary  to  eslalilisli  the  nlVeiise  or  to  ilis|irov«(  the  same  foniiil  on  the  vessel  shall 
also  Ite  sent  with  t hem. 

Aiir.  4.  K\ery  |)erson  Knilty  of  violating;  these  rej^nlalions  shall,  for  eaeli  olfenNe, 
he  iliu'd  not  less  than  +200  nor  more  than  ifl.i'OO.  or  impriMtned  not  more  than  six 
nH)nthH,  or  hoth;  and  vessels,  their  tacKle,  ;i|ip,ii-el,  Inrnit  iiie.  and  earyo  found 
eiij;a}j(Mi  in  \  iolal  ini;  these  rei;iilations  sli.all  lie  Inrfeiled  and  fdndemned. 

Sir  Joliii  Tlioini;Son  snbniiltcd  the  rollowiiii;'  <lintt: 

Aii'i'ici.K  I.  Ts'o  sealin^i;  execpt  hy  licriisis,  which  are  to  be  issued  at  two  I'nited 
States  and  two  Canadian  ports  on  the  Pacific  Coasl. 

These  licenses  to  he  t;rante(l  only  to  sailiiiij;  \essels,  and  not  to  he  uraiited  earlier 
than  a  date  that,  would  correspond  with  the  1st  of  May  in  the  latitude  of  \'ie- 
toria,  15.  C. 

Aim. '_'.  llach  vessel  cairyini;  such  license  to  use  a  dislinel  ive  llai,'  and  to  keep  a 
record  in  tlieoHieial  loj;  of  the  nnmher  of  se.als  killed  or  wounded,  and  the  locality 
in  whiidi  the  hnntint;'  takes  place,  from  day  to  ilay,  all  snch  entries  lit  he  liled  with 
the  collectors  (d'ciiHtoms  on  the  return  of  the,  vessels. 

AliT.  ;{.  The  use  of  rilles  and  m'ts  in  seal  lishiiii;  is  ])r()hil)ited. 

Aur.  1.  The  killing;  of  seals  to  he  |>roliil)iled  w  it  hin  a  zone  of  ;$0  miles  from  the 
Prihilof  Islands,  and  within  a  /one  of  10  miles  around  the  Aleutian  Isiimls. 

Aim.  .5.  The  killing  of  seals  to  he  proliihited  in  lieriui;'  Sea  (east  of  the  lincof 
demarcation  adoided  in  the  tM'atyof  ecssiim  from  Iv'ussia  to  the  lliiite<l  States) 
hefore  the  1st  of  .Inly  ami  after  llie  1st  of  Octoher  in  each  \i'ar. 

Aim'.  (!.  The  foref^oiiiL;  le^uiati'ins  shall  lit^  hrounlit  into  fnii-c  frmn  and  after  a  day 
to  be  au'rt  ed  upon  liy  (ireat  lirilain  and  the  United  Stales,  ajul  shall  conlinne  in 
operation  for  ten  .years  from  the  almvc  day:  and,  unless  (;ieat  liritain  or  tlic  liiiled 
States  shall,  twelve  nninths  helore  the  expiration  of  the  siiid  (icTind  of  ten  years, 
f^ive  notice  of  intention  to  termiuale  their  ojieration,  shall  conlinm!  in  force  one 
year  loncjer,  and  so  on  from  year  ti>  ,\  i  ar. 

Senator  Morjiiiii  submitted  tlic  rollowiiig  paiicr: 

I  adhere  to  the  position  taken  hy  the  I'nited  St.iles.  th;it  ]ielaij;ie  sealin.t:  should 
bo  prohibited  north  of  ',>''  ilejirces  noiih  latitude,  and  in  oi-dcr  to  m;ido  no  interfer- 
ence with  any  i|nestion  that  nia.\  eimcern  the  substantial  interest  of  K'lissia  east  id' 
180  dejfrees  longitude  from  (ireenwieh. 

1  believe  that  this  is  the  onl,\  rc.iUy  etfective  method  of  ])rotecl  iny;  and  ])reservinj;- 
these  M(!al8;  but,  if  the  Tribunal  shall  lucfcr  the  i)lan  of  ))idlcct  ion  and  preservation 
that  has  for  its  liasis  a  close  seai-ou,  1  resijcct  fully  insist  (hat  the  use  of  lirearms  and 
exjilosivcs  in  such  huutinj;  should  lie  prohibited  under  eli'ective  jienalt  ies,  as  well 
for  th<^  necessary  jirotection  ami  pi <'S(!rvation  of  the  seals  as  for  the  ]irotection  of 
human  lifeand  tl  e  jn'cservat  ion  of  peace;  forjoint  hunt  in;::,  or  t  hi-  huntiimina  com- 
nnm  rifjlit  and  in  the  same  waters,  of  these  val,uahle  an i nulls  will  jiroduct^  c(mtlicts 
and  bloodshed,  and  may  residt  in  international  conllict  oni'c  the  use  id'  lirearms  is 
sanctioned  by  Ihe  l.iws  that  ar(>  to  be  enacted  by  these  two  (iovernuicuts  to  carry  the 
award  of  the  Tribunal  into  cll'cct.  There  is  no  jiossible  reslr;iint  or  limit  that  can 
be  jdaeed  on  their  di'struet  ive  use;  this  is  adoom  of  the  seals;  that  is  as  cerrain  as 
thai  the  nenius  of  man,  in  killinjj;  the  seals,  is  almost  inlinilelv  superior  to  the 
iustinctof  self-preservatiou  in^heseal,  and  to  its  capacity  to  escape  the  jmrsuitof 


rmvrocoi.s. 


61 


iitcs) 

;i  iliiy 
lie  in 
iiilcd 
I  I'lirs, 
(111(1 


lionld 
■itcr- 
asl  of 

■I'viiin 

:iliiin 

Mini 

s  well 

i()i\  of 

roin- 

iillicts 

IMS  is 

r,v  tlio 

It  I'ini 

lin  lis 

<>  tilt' 

iiiit  «»1" 


I'lcii  in  litijitH,  iiiniiMl  w  iili  llic  liirciji-jdjiiliiii;  (Idiilili'-ltiiirclcij  sIidIuuiis,  willi  i-vlin- 
(Icr  cMitiitljjrs. 

r»;iion  (U'  Coiirct'l,  M:iit!iiis  N'iscoiiti  W'liostii,  aiid  Mr.  ( livjicis  (liam, 
li;»\  iiiy,  willi  tlic  assent  (tt'tlioif  ('ollciiniics.  jncpait'tl  n  draft  ofconcur- 
rciit  i't';iiilati(»iis  iii(«'iHlt(l  to  he  sul»iiiitt('(l  (otlic  Ti  il)iiiial.  piTSi'iiU'd, 
in  tlu'ii'  (•((llcctivc  nanu's.  tlic  dialf,  of  wliicli  tlic  text  is  as  follows: 

Aurui.i':  1.  'riitniKvciimiiMits  nC  tlic  rnJlcd  SIhIi^n  ;mil  (if  (Iicat  Itiiliiiii  .sliall  I'or- 
lii<l  tlifir  citi/ciis  and  siihjccls,  nsiicct  i\  il,v.  tn  l\ill,  caiilnic,  or  iniisiic  al  any  liiiic, 
anil  in  any  niaiincr  wliali'MT,  tlio  animals  iiiiMninnly  <  allrd  Ini-scals  within  a  /.oiut 
ol'  lit)  miles  around  the  I'rildlot'  Inlands,  inclii.sivt'  oi'  thi'  territorial  waters. 

'I'ln-  milts  nicnl  ioiii'd  in  the  ju'ect'dini;  ]iara,ura|ili  are  ;;co;;;iaidiical  miles,  ol'  (!()  to 
11  decree  of  lat  illlde. 

Al!i.  1'.  The  twolioveriiineiits  shall  t'orhid  their  eit  i/ons  and  snhjeels,  icfspoci  ively, 
tfi  kill,  eajdure.  or  ))nrsne,  in  any  manner  wliateNcr.  dnriiij;-  the  weason  extending; 
eaeli  year  from  tln^  151  h  of  Ajiril  to  the  Hist  of  .Inly,  liotli  inelnsive,  the  fnr-seals  on 
the  hiijh  sea  in  the  jtart  of  the  I'aeilie  Ocean,  inclusive,  of  the  I'.eiini;  Sea,  which  is 
situated  to  the  north  of  the  tliiity-lifth  decree  of  noi'tli  latitude. 

A  lit',  li.  Itiirine'  the  iteriod  of  time  and  in  the  watei's  in  whic'h  the  fur-seal  lishinj;  is 
allowed  only  sailin^i  \cssels  shall  he  permit  ted  to  carry  on  ov  lake  part  in  fur-seal 
lishinj;-  operations.  'I'hey  will,  however,  lie  at  lilici'ty  to  avail  themselves  of  tho  use 
of  canoes  or  small  hoats.  projuilled  wholly  hy  oars. 

AliT.  I.  The  sailinj;  \ess(ds  autliori/ed  to  fish  for  fur-seals  must  lie  proxiiled  with 
a  special  license  issued  for  that  piupnse  by  its  ( ioveinment.  and  shall  be  reijuireil  to 
cany  a  distiui;uishiiiif  llaj;  to  lie  presciihcd  liy  its  (ioverTUiieiit. 

.\IM'.  Ti.  'I'lie  masters  of  the  vessels  en,i;ai;ed  in  fur-se;il  tishinj;-  shall  enter  aceii- 
rateiy  in  their  otiicial  loi;  hook  the  (lat(^  and  plact^  ot'  each  I'lir-seal  lishin;;  opeialion, 
and  also  the  numlier  and  sex  of  the  seals  cajitiH'ed,  u]ion  ea 'li  day.  These  entries 
shall  he  communicalcil  liy  each  of  the  two  ( ioveriunents  to  the  other  at  tlu^  end  of 
each  fishinij  season. 

AiM',  (1.  The  us(?  of  nets,  firearniH,  ami  twplosivt^s  shai!  be  forbidden  in  the,  i'nr-s(sil 
lishini;'.  'I'liis  restriction  shall  not  apjily  to  sliotgiins  wI.imi  such  lisliin;^  takes  place 
outside  of  IJerin.i;  Sea. 

Alir.  7.  The  two  (iovernments  shall  take  measures  to  control  the  litness  of  the 
men  authorized  to  en,ii;i,ne  in  fur-seal  lishin^;  these  men  .shall  have  been  )iroved  lit  to 
handle  with  suftieient  skill  the  weajions  by  means  of  vh'.eh  thi.s  lishiut;  may  he 
carried  on. 

.Viir.  S.  The  rejiiilatiiins  contained  in  the  |irecedinj;  articles  shall  !iot  apply  to 
Indians  dwclliii'i'  on  the  coasts  ol'  the  territory  of  ilii'  United  States  or  of  (iicat 
liritaiii,  and  cairyin;;' on  in  their  canned,  at  a  small  distance  from  the  coasts  where 
they  ilwell.  fur-seal  lishin^. 

Aii'r.  !l.  The  concurrent  rcLiuiat  ions  hereby  delermiMed  with  .i  view  to  the  protee- 
lion  ami  pri'scr\  ation  of  the  fur-seals  shall  lem.iiii  in  force  until  tl  ey  ha\e  been,  in 
whole  or  in  I'arl,  abolished  or  mmlilicd  by  conniion  ai^reement  iielwecn  the  Cioveru- 
inellls  of  the  I'niled  States  ,ind  ol'  Creat  liritain. 

The  said  concnrreiit  reuuhitions  shall  be  submitted  e\ery  live  years  to  a  new 
examination,  so  as  to  enable  both  interested  tfovernmeiits  to  consider  wliether,  in 
the  li,i;ht  of  jiast  experience,  thei-e  is  occasinu  foi'  an,\  moililieal  ion  thereof. 

Baton  <\v  Coiirccl  devclopi'd,  on  holiiilf  of  liis  two  collfaf^'iies  and  in 
his  name,  the  i-easoiis  in  stip])oit  of  tlie  piecoflin;;'  diaft. 

The  Tribunal  decith'd  to  tiike,  as  a  basis  of  its  deliberations  upon  the 
eoncurreiit  ref^uUitions  which  it  was  itMiuircil  to  prepare,  the  wordino; 
pre.sented  colle(;tively  by  Baron  do  Coiircel,  .Marquis  Visconti  V^enosta, 
and  Mr.  (jreger.s  Ciram. 


G2 


PROTOCOLS. 


Tlu'  iirhitiatoi's  tlioii  procirdcd  lo  consider  article  1  of  this  (Iral't, 

iSir  Joliii  TlioiDpsoii  moved,  as  an  anicndnient,  tliat  tlie  ])i'oldl>iled 
zono  around  the  l'rihih>t'  Ishmds  he  ;}(>  miles,  incduding  tenitorial 
waters. 

This  amendment  was  rojeclcd  by  the  vote  of  a  majority,  composed  of 
Baron  de  (Jourcel,  y\i.  .Justice  llarlan,  Senator  .Morgan,  Manpiis 
Visconti  Venosta,  and  IMr.  (licycrs  (Jram.  Lord  liannen  «le(dared 
that,  alter  mu(di  hesitation,  and  althon;4li  considering;'  that  serious 
reasons  i('conim«'nde(l  the  adoi)tion  of  a  zone  el"  .">(>  miles,  he  adhered 
to  the  vote  of  tiu^  majority. 

The  text  of  article  1  was  adojtted  in  conlormity  with  the  draft  by  all 
the  arbitrators  with  the  exception  of  Sir  -lohn  Thompson. 

As  t(»  article  2,  Sir  .lohn  Th(»mi»son  moved  the  following;'  amendnu'ut: 

''That  tiie  date  of  xVjuil  l."»tli,  meiitioneil  in  the  diaft,  be  chan<;ed  to 
31ay  1st."  and  stated  at  lenj;tli  his  views  in  support  of  the  amendment. 

Mr.  Justice  llarlan  and  Senator  Moryau  voted  aj;ainst  tiiis  amend- 
ment. They  concurred  in  stating  that  tluj  proper  protection  and  ])reser- 
vation  of  these  fur  seals  eould  not  be  certainly  secured  except  by  a  pro- 
hibition of  i>elaj;ie  sealing'  in  all  the  waters  traversedbytlio.se  animals 
north  of  .T)^  of  north  latittule  and  east  of  iSO^of  lonjtitnde  from  (Ireen- 
wich.  IJut  as  the  closed  time  from  Ajtril  loth  to  .July  ;>lst,  in  connec- 
tion with  other  provisions.  ;;ave  .some  ho])e  that  this  race  inij;ht  be 
saved  from  destruction  by  pela.uic  sealinj;',  and  as  that  jieriod  had  been 
recommended  by  the  arbitrators  from  France,  Italy,  ami  Norway,  they 
had,  in  the  interest  of  conciliation  only.  ex])ressed  their  willininness  to 
a('cei)tthe  c.lcsedtime  proposed  by  Ilaron  d(!  Courcel,  ]\Iarquis  Visconti 
Venosta,  and  ]Mr.  tilre<>ers  (iram  in  the  original  draft  submitted  by 
them.  iWit  they  objected  to  the  proposed  chaTige  from  April  loth  to 
May  1st  as  one  that  would  put  in  peril  t'.ie  existence  of  this  race  of 
aidmals,  and  teiul  to  defeat  its  pr()i)er  protection  and  preservation. 
The  duty  of  the  Tribunal,  they  s;iid,  was  to  prescribe  such  regulations 
as  would  properly  jtrotect  and  preserve  this  race,  whatever  elVect  such 
regulations  might  have  upon  the  business  of  [»elagic  .sealing. 

The  anuMubnent  iiresented  by  Sir  .John  Thompson  was  sustained  by 
Lord  Ilannen,  ."Marcpiis  Visconti  Venosta,  and  l\lr.  Gregeis  Gram. 

Baron  de  Courcel  declared  that  he  seriously  objected  to  an  extension 
of  the  season  oi>en  to  pelagic  sealing  during  the  spring,  because  it  was 
during  that  sea.son  that  i)elagic  sealing,  attacking  pregnant  females, 
was  most  destructive;  nevertheless  he  thought  proper  to  V(»tc  for  the 
amendment  of  Sir  .loliu  Thompson  in  a  .s]»irit  of  conciliation  and  so 
as  to  secure  in  its  general  outlines  the  adoption  of  the  draft  actually 
submitted  to  the  consideration  of  the  arbitrators,  and  which  he  is  not 
unaware  imposes  strict  liuiitations  upon  the  taking  of  fur  seals  on  the 
high  sea. 

In  conse(|uence,  the  anu'udment  of  Sir  .John  Thompson  to  insert  th" 
date  of  May  1st  instead  (^f  tiiat  of  April  loth  in  article  1-'  was  adopted. 


PROTOCOLS. 


63 


I.' 

XMision 
it  was 
■iiiak'S, 
for  the 
and  so 
•tuiilly 
is  not 
on  tlie 


Sir  .Tolin  Tliouipsoii  tlicii  nioM-d  a  sicuiid  anicndnu'nt,  worded  as 
f'olltMVs: 

'I'liiit  tlu'  woiils:  rriiiii  Mnii  hi  lo-luhi  •Hut  bc«tnM'l;  niit  imd  rritlacftl  liy  I  lit-  words: 
I'nini  JiiinKirji  Ixl  (o  Jiili/  /si. 

]\Ir.  dnsticc  llarlan  and  S<'iiat(»r  IMorjian  fxpn'sscd  tlicinsclxcs 
stronfily  ajiainst  allowinj;  i)('la;;ii'.  scalinji'  dnriii}i  the  uiontii  ol"  'Inly, 
and  voted  a;.;ainst  tlic  aincndincnt. 

Lord  Ilannen  abstained  tenipoiarily  iKtm  exitressinj^- an  oj»inion. 

Maniiiis  Visconti  Venosta  found  it  dlllicnit  to  a<'<'ei)t  tlie  date  of 
Jnly  1st.  In  ease  a  majority  of  tbe  aibitratrrs  adhered  in  principle  to 
the  amendment  of  Sir  -lolm  Thompson,  lie  would  asli  that  this  date  lie 
replaced  by  that  of  -Inly  lotii.  it  was  dnriiiu'  tlie  niontli  of  duly  that 
the  work  of  rei-idduction  of  the  seals  took  p  ace,  chietly  dm  inn'  tiie 
first  fortniji'ht  of  that  iimntli,  diirin,!;'  which  many  of  the  jiravid  fenndes 
were  still  on  the  track  between  the  passes  of  the  Aleutian  Islands  and 
the  I'ribilof  j;roup. 

I'ut,  be  .said,  tiie  question  <»f  tlie  close  season  was,  accoi'dinj;  to  his 
view,  intinndely  connected  with  that  of  the  prohibition  of  the  use  of 
ti  rearms. 

The  establishment  of  a  closed  season,  e.xtendinj;'  from  .January  to 
duly,  meant  that  jiracitically  there  would  be  no  pelaj^jic  sealinf>'  outside 
of  I>erin<;  Sea,  ami  that  the  use  of  lirearms  beiufjr,  according  to  Article 
VI  of  the  project,  proliibit(!d  in  that  sea,  all  pela;;ic  sealing;"  in  future 
would  only  be  allowed  by  means  of  spears  or  harpoons. 

lie  had  already  iiad  occasion  to  m  ike  known  his  point  of  view.  !!(! 
felt  disi)()sed  to  i)lace  serious  limitations  upon  jielauic  scaling,  but  he 
did  not  intend  to  suppress  it,  neither  in  jirinciplc  nor  in  practice; 
neither  opetdy,  nor  by  imlirect  means.  lie  <lid  not  think  that  tlie 
Tribuinil  could  withdraw  by  the  rei^iilations  all  that  it  had  conceded  by 
its  decisions  on  the  (luestions  of  right. 

He  did  not  i)ossess  sufficient  information  to  form  an  opinion  in  reganl 
to  the  practical  effect  of  the  prohibition  of  lirearms  and  tlie  exclusive 
use  of  spears  ami  harpoons.  If  the  prohibition  in  question  had  applied, 
as  was  proposed  in  the  ])roJe(;t,  to  one  zonc!  only  of  i)elagic  sealing,  the 
consequences,  whatever  they  might  have  been,  would  have  aflected  but 
one  portion  of  the  fisheries;  and  in  this  way  the  prohibition  would  have 
been  but  a  restriction.  IJut  if  it  was  to  be  ai)plied  to  all  pelagic  seal- 
ing, he  eould  not  foresee  its  consi'ipu'iices  any  longer,  and  under  such 
conditions  he  would  be  compelled  to  reserve  his  vote  respecting  the 
interdiction  of  the  use  of  firearms. 

He  would  feel  inclined  rather  to  exandne  whether,  in  accepting-  a 
closed  .season  from  January  1st  to  Jnly  ir)th,  in  place  of  the  said  prcdiibi- 
tion,  it  would  not  be  siutable  to  decide  that  every  three  years  pelagic 
sealing  be  suspended  for  the  period  of  a  whole  year.  This  woidd  be 
only  a  restriction,  the  consecpiences  of  which  he  would  feel  prepared 
to  appreciate,  at  least  by  conqiarisou. 


64 


PI{OrOC!()LR. 


im 


Mr.  rii'iiiii  Hioii.ulit.  like  Man|iiis  \'isc«»iiti  Vj'iiosta,  lliat  pcliijjic  sciil 
iiif^  oil  tlic  lii;;li  Hfii  (liiriiii;-  tlic  iiioiitli  of  July  would  attack  necessarily 
ii  j;reat  iiimilter  (»C  |>re;;iiaiit  leinales  ami  would  jii  eoiise(|ueiu'e  l)(^  very 
luejudii-ial.     lie  voted  a^aiiisi  the  aiMeiidiiieiit. 

Ilaroii  de  <  'oiirecl  declared  tiiat  lie  wa.s  disposed  to  accept  this  aiueiid- 
iiieiit,  because  lie  coMsideie<l  pelaj;!*'  sealiii}^  in  the  spriii;;'  as  essentially 
(letiiiaeiital  to  lln'  pieservation  of  tliespecii's  of  liirseals.  Act-onliii;;' 
to  Ills  notion  the  close  season  lor  tiiiseal  llshiii<;  should  extend  until 
July  l-'tth,  at  which  time  the  total  iiiiinherot'  leinales,  save  some  iiiiiinpoi- 
tant  exceptions,  had  arrived  at  the  Prihilof  Islands  to  deliver  their 
youn;>;;  Imt  he  woidd  cheerlully  make  the  saciilice  (d"  the  lift  ecu  lirst 
days  in  tliily  toolitain  the  lelimpiishment  of  all  pelagic  sealing  in  the 
spiin,;;'. 

TIm^  second  aniendinent  of  Sir  John  Thompson  was  conse«iuently 
negatived  by  a  inajoiity  of  the  arliitiatius, 

liai'on  de  Conn-el  then  moved  the  followin<;  aiueiidment  as  a  eompio- 
uiisc: 

'I'iiiit  tli(^  wdid.s:  Fium  Mai)  /xl  loJidij  .ilut  lie  rcitlacctl  liy  tlio  words:  I'rom  ,/tiiniaiii 
Ul  to  J II hi  /mil. 

Sir  John  'rhoni|isoii  declared  tliat  as,  in  bis  o])inion,  tlu^  Tribunal  <lid 
not  possess  snilicient  infonnation  to  deteiniim^  whether  the  abandon- 
inent  of  the  lii^lit  to  far  seal  iishin^-  duriiif;-  the  four  months  of  winter 
and  spriiiji,  in  which  it  was  conceded  by  the  rej-ulation  previously 
adopted,  would  be  suHiciently  compensated  by  the  addition  of  thcsh(»it 
season  formed  of  tlie  three  last  weeks  of  the  month  of  July,  he(b'cliiied 
to  assume  any  respcnisibility  in  regard  to  this,  and  abstained  Irom  votinj;' 
I'or  the  proposed  amendment. 

liord  llauneii  abstained  tor  the  same  reasons  as  Sir  John  Thompson. 

The  other  arbitrators  maintained  their  objections  aj,'ainst  any  pelagic 
seal  in  ji'  daring  the  month  of  July. 

Jn  consei|ueiice  the  ameiulment  was  not  adopted. 

Lord  llannen  asked  that  the  extent  of  waters  in  which  fur-seal  fishing 
would  be  forbidden  each  year  during  the  close  season,  limited  ti>  the 
south  by  the  thirtytifth  degree  of  north  latitude,  be  likewise  limited  to 
the  west  by  the  adoption  of  a  bouiidar\  line,  in  default  of  which  Hiissia 
and  .Japan  would  be  called  upon  to  benelit  gratuitously  of  the  herd  of 
seals  fre<|ii('ntiiig  their  waters,  by  the  prohibition  imposed  upon  the  sub- 
jects and  citizens  of  Great  IJritain  and  of  the  I'liited  States. 

He  moved  in  consecpience  to  insert  in  Article  li,  after  the  words: 
North  of  the  thirtj/li/th  (Icf/ric  of  north  hititudr,  the  words:  (Otd  cdslirdrd 
of  the  one  huiulrcd  luul  eightieth  decree  of  loiKjUudeJ'rom  Greenn'teh  till  it 
utrikes  the  iratcr  Ixntndarif  described  in  Artiele  I  of  the  treaty  of  If^li? 
hetireen  the  United  tStatcs  and  RuNsia,  and  following  that  line  up  to  Bering 
Straitn. 

JJaroii  de  Courcel  stated  that  if  the  authors  of  the  draft  had  abstained 
from  indleatiiiy  a  western  boundary  as  claimed  by  Lord  Uaunen,  they 


lMlOT()C()L8, 


fi5 


l|)SOII. 

iliigic 


>i(ls : 
lir(fr<l 

till  it 
f  lSfi7 
kriiifi 


liad  so  acted  out  of  U'^jiiid  for  IJussia  aii<l  .lapaii,  pnwcis  not  ivpre- 
wilted  bcfoie  the  Trihtiiial  of  Aibitratioii,  and  toward  tlie  waters  of 
whom  it  a|»[>eiired  not  eiiiiitalth'.  to  drive  biiek  the  Mii;,'li.sh  and  Ameri- 
can jiehigic  sealers  diiriiij>'  tl  t^  whide  time  of  the  eh>se  seas«»ii.  Nevei- 
theless,  as  Wir  as  lie  was  e(»n.-erned  he  did  not  (h'sire  to  ilo  aiiytiiiii;;' 
whicii  u;i;;lit  he  prejudicial  to  the  position  of  (ireat  IJritain  or  of  tiie 
I'nited  States  in  the  negotiation  wiiieli  tiie  (loverimieiits  of  these  two 
countries  might  eiipigc  ultimately  witli  Kiissia  ami  .la|)aii.  inconse- 
quence he  accepted  the  amendment  proposed  by  Lord  llaiineii. 

This  amendment  was  iinaiiiniously  agreed  to. 

The  whole  of  article  -of  the  draft,  modilied  and  completed  by  the 
two  amendments  which  had  been  made  to  it,  was  voted  al'limati\cly  by 
the  Haroii  de  Courcel,  Lord  llanneu,  !Sir -lolm  Thompson,  .Martpiis  \is- 
cimti  V^Miostsi,  and  Mr.(iregeis(Jram.  Mr. -Iiislice  Harlan  and  Senator 
Morgan  voted  in  the  negative. 

The  text  of  article  ."}  of  the  draft,  after  an  exchange  of  views  iK'twecii 
the  arbitrators,  was  modilied  in  its  last  part.  In  place  of  the  words: 
Canovti  or  small  bouts  itroprllnl  irliollj/  Inj  ours,  the  following  words  were 
substituted:  (Juhoch  or  iiiitlfcl.cd  IxkiIs,  iinijicllcil  hy  iiaildlcs,  oars,  or 
soils,  (IS  arc  in  common  use  as  JisLUvj  boats. 

This  article,  as  moditicd,  was  agreed  to. 

Article  4  of  the  draft  was  iinaniiiKtiisly  agreed  to  in  its  entirety. 

Article  5  was  also  iinaiiiiiionsly  agreed  to. 

As  to  article  (>  it  was  asked  that  the  tu(»  phrases  composing  it  be 
<*ousidered  and  voted  upon  separately. 

The  tirst  phrase,  worded  as  follows:  The  usv  of  iwts,  Jircarms,  <iii<l 
f.rplosins  shall  br  I'orbiihh-n  in  the  Jar-seal  Jishliii/,  was  voted  in  the 
atlirmative  by  Uaroii  de  Courcel,  Mr.  JustiiH'  Harlan,  Senator  Morgan, 
Manpiis  Visconti  Venosta,  and  Mv.  (Ircgcrs  (iram. 

Sir  .lohn  Thompson  voted  in  the  negative. 

L(»rd  llanneu  abstained,  reserving  unto  himself  to  vote  cm  the  whole 
artiide. 

The  second  phrase  was  worded  as  tbllows:  This  restrii'lioit  shall  in>t 
apply  to  shotijuns  a'hen  such  Jishiii;/  tahes  place  outside  of  lierinij  Sea. 

This  provision  was  objected  to  l>y  Sir  John  Thompson,  who  opp(tsed 
the  prohibititui  of  shotgnns  in  IJering's  Sea  or  elsewhere;  it  was 
adopted  by  a  majority  of  tin'  arbitrators  composed  of  Uarou  do  Cour- 
cel, Lord  llaiinen.  Marquis  Visconti  Venosta,  and  I\lr.  (Jiam. 

Mr.  Justice  llarlaii  and  Senator  Morgan  abstained  from  voting, 
objecting  to  the  use  of  shotguns  iit  all  or  in  any  of  the  waters  traversed 
by  these  fur-seals. 

The  Tribunal  decided  that,  in  order  to  avoid  a  |)ossible  ambiguity, 
article  (»  would  b(^  eomi)leted  by  the  addition  of  the  following  words,  to 
be  inserted  at  the  end  of  the  second  phrase:  duriny  the  season  when  it 
may  be  laufully  carried  on. 

Article  0  as  a  whole  was  voted  for  by  a  majority  foinied  of  llaroii  de 

B  S— VOL  I 5 


''m 


06 


PROTOCOLS. 


(.'()tir(!el,  Lord  IliiniKMi,  Mai(inis  \'isc(>iiti  Vono.sta,  und  ]Mr.  (jiojjers 
drain.  Mv.  .Justice  Ilaihiii,  Senator  Morj^aii,  and  Sir  Joliii  Tliouip.soii 
voted  apiiiist  it. 

The  text  of  article  7  }j;ave  rise  to  observations  from  several  of  the 
arbitrators,  l)earin<(  upon  the  i)ra<'tical  dilliciilty  of  obtaininj;  a  strict 
execution  of  tliis  article.  Kevtutheless,  tliat  article  was  v<tted  ibr  by  a 
majority  composed  of  all  the  arbitratois,  with  the  excc[»tion  of  Sir 
.lohn  Thompson,  who  voted  aj^ainst  it. 

As  to  article  8,  Senator  Morgan  movofl  to  strike  out  the  whole  of  the 
said  article.  This  motion  was  negatived,  Mr.  -Justice  Harlan  and  Sen- 
ator l\Ior«an  alone  voting"  tor  it. 

.Mr.  .Justice  Harlan  e.\i)ressed  a  desire  to  have  the  whole  of  article  S 
stricken  out,  but  as  that  could  not  be  done,  he  proposed  to  substitute 
tiie  tbllowiiij;'  text  in  i)lace  of  that  of  the  (h'aft: 

Tlic  l\'i'j;uIiili()M.s  ctiiiliiiiii'd  in  tlio  itrcccdiiii;  iirticjcs  isliiill  not  iipply  to  Iiwliiins 
(Iwclliiiji'  on  till!  (Miasfs  of  tlic  tcnitory  of  tiii'  I'nitt'd  Statt'S  or  of"  (Jieat  IJritain  and 
carr.vinj;  on  t'lir  sial  lisliini^  witli  spears  or  liai|Hioiis.  only,  in  canoi-H  or  nndcclvcd 
l)oat.s  not  triiMs|ioitf(l  liy  or  nscd  in  connection  witli  otJicr  vessels  and  jtropelled 
wholly  liy  ])addles  or  oais  and  manned  l>y  not  more  than  two  persons  each  in  tlmway 
anciently  practiced  l)y  the  Indians,  pi'ovided  smdi  Indians  are  not  in  the  employment 
oC  other  jiiMsons,  and  iiri>vided  that,  when  so  hnntini;'  in  eanoe.s  or  nndecked  lioats, 
they  shall  not  linnl  Inr  seals  outside  territorial  waters  under  contract  lor  tlm 
(lcli\cry  ol'  the  skins  to  any  person. 

This  exemption  shall  not  he  coM.slrued  to  atVect  the  mnnici|ial  law  of  either  coun- 
try, nor  shall  i(  extend  to  llie  waters  of  Berinu'  .*^ea  or  the  waters  of  tlio  .Meutian 
I'asses. 

The  arbitrat(trs  unanimously  decided  to  take  as  a  basis  lor  the  word 
iiij>'  of  article  <S  the  text  submitted  by  Mr.  -Justice  Harlan. 

Sir  John  Thompson  moved  to  strike  out  ()f  tluit  text  the  words:  irith 
fH)c<(i;s  or  ItarjiooitK  oiihj. 

This  siijjpression  was  V(tte<l  by  a  majority  composed  of  Baron  de 
doiirccl,  liord  llaniicn.  Sir  -John  Thompson,  Mar<piis  \'isct)nti  Venosta, 
iind  Mr.  (lief>ers  (irain. 

Mr. -Justice  Harlan  and  Senator  iMor{>iin  voted  ajiainst  tlie  suppres- 
sion asked  for,  because  they  hiid  the  stronji'est  objections  to  the  use  ot 
tirearms  by  the  Indians  at  any  time  or  in  any  waters. 

Sir  -lolin  Thomp.son  nioNcd  to  substitute  for  the  words:  hi/ paddles  or 
oars,  the  words:  hy  paddUs,  oars,  or  sails. 

The  proi)osed  aineiidmeiit  was  adopted  by  the  Tribunal,  Mr.  -Justice 
Harlan  and  Senator  Morofan  votino-  in  the  ne}>ative. 

Sir  -Jolin  Tlioni]>soii  proposed  to  substitute  for  the  words:  manucd  by 
not  more  than  two  ji>i'r.s'o««  each,  the  words:  maimed  by  not  more  than 
fire  persons  each. 

This  iiimndment  was  voted  by  a  majority  formed  of  liaron  de  ( 'oureel, 
Lord  Hiiiiiicn,  Sir  -John  Thompson,  IMarquis  Viscouti  Venosta,  and  Mv 
(Jreofis  (Sram. 

Mr.  Justice  IJarhiii  and  'Senator  Moroan  voted  against  it, 


IM{<1TOCOLS. 


67 


1  of  the 
a  strict 
lor  by  11 

I  of  Sir 

le  of  the 
111(1  Sen- 
article  -S 
ibstitute 

iO  IiuliiiiiH 
ritiiiti  anil 
niidccki'd 
propel  le<l 

II  tlit^  wiiy 
iployiiit'iit 
ked  boiits, 
I't  for  the 

tluT  couii- 
1(1  AlcMitiiiii 

10  woi'd- 

s:  irith 

;uoii  tie 
'enostii, 

■luppres- 
10  use  of 

uhlles  or 

.lustice 

iniu'd  hy 
>rc  than 

'on  reel, 
and  Mv 


Mr.  Justieo  ITarlan  moved  as  a  cunnnoiniso  to  snbstituti;  for  the 
words  Jive  pemoiiN,  th<'  words  tlinr  iwr.sdiis. 

This  inodiUeation,  o|)posed  by  Sir  .lolin  Tlutnipsoii,  was  nc^ativod 
by  the  same  niiijoiity  which  had  \(»ted  tiie  anicii'iMiciil. 

Sir  John  Thompson  moved  to  substitute  for  the  words:  in  the  ictii/ 
ancientl})  practiced^  the  words:  in  the  ir<tii  hHlurto  jinu'ticed. 

This  aniendmer.t was  oi)posod  l)y  Mr.  .luN'icc  llarlaii  and  Senator 
Morgan,  and  was  voted  by  a  majoiity  foiniiMl  by  all  the  other  arbitrators. 

Sir  .b>hn  Thompson  niov«Ml  to  add  to  the  ti'xt  before  the  Tribunal  a 
]>araf«ra|)h  worded  as  follows: 

\olhing  herein  contained  is  intended  to  interfere  n-Hh  the  emploi/nient  of 
TndlnnN,  as  hnnters,  or  othern-ise,  in  eonnee(i<>)i  irithfnr  sealintj  vessels  us 
heretofore. 

This  addition  was  unanimously  adopted. 

Senator  Mor,i;an  proposed  to  add  at  the  end  of  the  second  ])ara<;raph 
of  article  S,  alter  the  words:  or  the  n-alers  of  the  Mi-ntian  I'asses,  the 
following  words:  Nor  shall  it  he  operative  in  favor  oj' sneh  Indians  prior 
to  the  1st  Jannari/,  JS!i'>. 

This  i)roposition,su[»porte(l  by  Senator  Morgan  and  Mr, -Iiistic*',  Har- 
lan, was  negatived  by  a  majority  of  the  arbitrators  formed  of  r>ar<ni 
de  Coitnv^l,  Lord  Ilaniien.  Sir  .lohii  Thom[ison,  Alaitpiis  Viscoiiti 
Venosta,  and  Mr.  (iiej^ers  (Irani. 

As  to  article  t>,  Sir  -Fohii  Thompson  moved  to  siil»stitut<^  for  the  text 
aefrually  bein.n'  considered  by  the  arl)itratois  tlie  text  which  appeared 
as  article  (»  of  the  draft  of  re.u,ulatioiis  proposed  l)y  himself  and  wliich 
reserved  to  the  two  (lovernmenrs  of  (iicat  Ilritain  and  of  tiie  l'nite<l 
States  the  riylit  of  <leiiouiicin,i;'  the  ref^ulatioiis  to  be  estal)lishe(l  at 
the  end  of  a  period  of  ten  years,  and  tlieu  from  year  to  year. 

After  deliberation,  the  arbitrators,  other  tiian  Sir  -bdin  Tiioinpson, 
decided  to  reject  this  motion,  and  c(mtiniied  to  the  consideration  of  the. 
text  of  article  *.>,  presented  liy  Uantii  de  Comcel,  Aiarciuis  Viscoiiti 
Venosta,  and  Mr.  (irc<;ers  (Iram. 

This  text  was  voted  by  ail  .lie  arbitrators,  with  the  exception  of  Sir 
John  T]iom|»s()n.  who  voted  a,iiaiiist  it. 

The  Tribunal  haxinii  thus  settled  the  wordin;:;-  of  each  of  tiie  articles 
intended  to  api)ear  in  tlu'  reiiiilatioiis  ))repaied  in  conformity  with 
Article  VII  of  the  treaty  of  l'\'biuar\-  :!!»,  ISirj,  decided  to  proceed  to 
vote  ui)on  the  whole  of  the  nine  articles  of  tiiese  le.yiilations. 

The  whole  «»f  tiie  rejiulatioiis  as  aiiiendeil  were  voteil  by  i'.aroii  (io 
Courcel,  Lord  llannen,  Martpiis  V^iscouti  \  I'liosta,  and  JNIr.  (Jregers 
Gram. 

Sir  John  Thompson,  Mr.  .Fustice  Hiirlan,  and  St'tiafor  Morgan  voted 
against  Miem  as  an  entirety,  although  a|ipro\iiig  certain  p;irts  of  them. 

Ill  eonsecxuence,  the  whole  reguhitions  were  adopted,  ami  tlu! 
Tribuii  <1  decided  to  incorporate  the  text  in  the  award,  wifii  the  follow- 
ing' statement  preceding  it; 


il 


68 


PROTOCOLS. 


And  wlirrciiH  tli«  iifdrcs.'iid  (Icti'iriiiiiiitiiiM  ot'  tin'  I'oi't'jroin;;  i|iii'vti<m,s  us  to  tlie 
cxrliisivc  Jiirisdict  inn  of  tlu^  I'liitiMl  States  iiicntiniind  in  Artiflu  \'I  leaves  the  sub- 
ject in  sncli  a  po.sii  ion  that  tlie  ronenrrenee  ot' (ileal  liritain  is  necessary  I  o  tlio 
estaldislinient  of  re!;ul;itions  for  tin-  |iro|ier  iirolect  ion  and  jireservation  of  the  fnr- 
seal  in  or  lialiil  iially  resorting  to  the  licsrini;'  Soa,  the  'rril)iinal  havinj^  decided  liy  :i 
majority  as  to  each  ailicle  of  tiio  lollowinn'  reunlat  Ions,  we,  tiie  Hiiid  Jiaron  do 
(,"<)nre(d,  l,ord  llaniien,  Manpiis  Visconti  N'enosta,  and  Mr.  (Jretjei's  (Irani,  JiM.sentin}^ 
to  the  wliole  of  the  nine  artiides  of  tho  foliowiuf^  rej;nlal ions,  and  heinjn  a  majority 
of  tin;  said  arbitrators,  do  decide  and  det(>rnnne  in  tln^  mode  ])rovided  by  the  treaty, 
tliat  till!  following-  eonenrreiit  rc<;iihitioiis  outside  the  jiirisdiittional  limits  of  tho 
r(\spe(!tivo  (ioverniiieiils  are  necessary,  and  that  they  should  extend  over  tho  waters 
Jiereiiiafter  nieiil  ifincd.  that  is  to  say: 

Till'  arbit  lit  tors  tlicii  procct'ded  to  Uic  coiisidciatioii  of  ii  project  (»f 
doclaiatioiis,  in  (•omicctioii  with  tlic,  le^idatioiis,  whicii  IJaroii  <le  Coiiicel 
in  his  name,  as  in  that  of  Mai'(iiiis  \'i,sconti  Venosta  and  .Mr.  (Jreyers 
(Irani,  proposed  to  the  Trilmnal  to  refer  to  the  Govcniinents  of  the 
(Jiiited  kStates  and  (ireat  Biit.iin  for  tiieir  consideration.  This  project  is 
worded  as  lollows: 

Jkilaralidiis  mmJr  hij  the    Ti  'htnial  of  Avhitritl'uiii  and  reftrnil  in  the  Governmeiila  (/  Ihc 
L  iiilcU  Sl<  lin  and  Ureal  llrilaiii  for  their  coiinidvrution. 

I. 

The  arbitrators  declare  that  the  coneiirreiit  re<<;iilations,  as  determined  upon  by 
the  Triliunal  of  Ai  bit  r,it  ion,  by  virtue  of  Article  \  l\  of  tho  Treaty  of  tin;  29th  of 
l'\d)rnary,  ISill'.  beiiii;  apidicaUh  to  the  liij^h  sea  only,  siionld,  in  their  opinion,  bo 
supplemented  by  other  re,i;'iilal  ions  applicable  within  tin*  limits  of  the  soverttijvnty 
of  each  of  the  two  powers  interested  and  to  bo  settled  by  their  uonimon  a^^reement. 

II. 

In  view  of  the  critical  condition  to  which  it  ajiiiears  certain  that  the  race  of  fiir- 
sc.ils  is  now  r4'diii-c(l  in  conscinience  of  circnmstani cs  not  fully  known,  the  arbi- 
trators think  tit  U>  rccoinniend  both  (iovenimenis  to  come  to  an  nnderstaiidin;c  in 
order  to  )ir(iliiliit  ,'iny  killinn'of  fur-seals,  either  on  land  or  at  sea,  for  a  period  of 
two  or  three  \eais,  or  at  least  one  year,  subject  to  siich  exceptions  as  the  two  (iov- 
einmeiils  miulil  lliink  pi  opcr  to  admit  of. 

Such  a  measure!  miylit  be  recurred  to  at  occasional  intervals  if  found  boiiolieial. 


III. 

Tlie  arbitrators  declare  moreover  that,  in  their  o])iiii(m.  tlio  carrying?  out  of  tho 
reij;iilation'^  ditcrmiiicd  upon  l>y  the  '1  riliiiiial  of  Arbitration,  should  be  assured  by  a 
system  id'  stipulal  ions  and  measures  to  be  eiiaeled  by  the  two  ]iowers;  and  that  tho 
Trilmnal  iiinsi,  in  eonsei|nciice,  leave  it  to  the  two  ]iowers  to  decide  u])oii  tlie  means 
for  ffivini;  elieet  to  the  reniilat  ions  deteriiiined  upon  by  it. 

We  do  certify  this  Knjjlish  version  to  lie  true  and  accurate,  and  have  signed  tlie 
same  at  I'aiis  this day  of  Aiiunst,  lS!i:i. 

The  (irst  and  third  of  tlie  proposi-d  (h'chirations  were  niiiiniiiionsly 
adopted  witiiout  niodilicatioii. 

As  eoiicciiis  (lie  sticoiid,  Lord  Haniieii,  iilthon{>h  ai)provin}i-  the  spirit 
in  whirli  it  is  cone  \e(l,  and  altliou.^h  leoardiiij;-  its  very  (h'sirable  that 
the  destiiKiioii  of  fur  seals  nii.olit  he  entirely  sus[»eiuled  dnring  a  certain 


PROTOCOLS. 


69 


IS  to  til" 
,  tin-  Bllll- 

vy  (o  tlio 
f  tin-  fiir- 
kIimI  Ity  ii 
Hiiroii  do 

ilMSflltillfl 

iiiiijority 
lu!  tifiity, 
its  (if  tl>o 
ho  wiitc^rs 

rojcct  of 
5  Con  reel 
( 1  lefiers 
ts  of  the 
project  is 


tents  vf  the 


"(1  upon  by 

Iw!  20tU  of 

iii|iiuioii,  lio 

)vi'roisnty 

ncciiicut. 


I'o  ol'  fur- 
tlio  !irl)i- 

iiiiliii^  in 

lOl'iml  ol" 

two  (iov- 


t-nt' 


I'lcial. 


out  of  the 

ssMit'd  liy  a 
(1  that  Ihf 
tlic  nu'ium 


HlHinct 


I   tho 


iiimously 

\hv  spirit 

•;il)l«'  tli:it 

<i  certiiiii 


period  of  time,  so  as  to  oiiablo  iiiitnro  to  rotrieve  tlio  losses  wliidi  this 
racoof  iiiiiinals  liiis  uii(h'rji-one,  (lechired  tliiit  hedoes  not  feel  authorized 
by  the  terms  of  his  mandate  to  express  an  o|)inioii  on  the  subject. 

Sir  John  Thompson  looked  ui)on  the  sul)i(M't  in  the  same,  lij^lit  as 
Lord  Ilannei). 

The  otlier  arbitrators  ado]»ted  the  second  declaration  and  it  was 
decided  that  the  text  of  (lie  three  declarations  should  be  handed,  at 
the  same  time  as  tlu*  award,  but  in  a  sepaiatc  document,  to  the  a,L>'ents 
of  the  two  (lovernments  of  the  United  Stat<'s  ol'  America  and  of  (!r<'at 
Britain,  to  b(^  transmitted  by  tiieni  to  tlieii'  respective  ( lov  crnments. 

Passinjjf  to  the  <'onsiderati(»n  of  t  he  (piestions  of  fa>  t  wiiicii  iiad  been 
referred  to  it  by  the  Ibitannic  (lONcnuneid,  by  virtue  of  AI■licl(^  VI  IT 
of  the  treaty  of  Febniary  L'Oth,  I.S!»L',  the  Tribunal  noticed  tiiar  the 
a.uent  and  counsel  of  the  (lovernment  of  liie  (nited  Slates  had 
a(hnitted  that  the  stab'inent  of  facts  submitted  by  the  ajiciit  of  the 
(lovernment  ol'  (licat  ibitain  was  conlirmed  by  tiie  evidence,  and  had 
declared  themselves  in  accord  witii  the  ajicnt  and  counsel  of  the  (lov- 
ernment of  (ireat  I'.ritain  to  leave  it  to  the  'i'ribnnai  to  deciar*'  ami 
l»rouounce  true,  as  far  as  it  mij^ht  Jndjic  |)roper,  the  said  statement  ol 
facts. 

Th(^  arbitrators,  after  deliberatinji',  in  conse(pience,  upon  the  facts 
submitted  to  tla^  Tribunal,  decideil  unanimously  that  the  said  facts,  as 
related  in  the  al>ove mentioned  statement,  arc  true. 

The  arbitrators  then  proceeded  with  the  linal  wordini;' of  the  award, 
so  as  to  make  the  awaid  aoice  with  each  of  the  decisions  arrived  at  by 
a  majority  of  votes  on  each  of  the  (luestions  sulnnittcd  to  the  Tribniuil, 
taking' as  a  basis  of  this  wordiiij^',  as  it  had  been  a.ufeed,  tlu-  form  i)re- 
])ared  by  Lord  llann<'n. 

It  was  distinctly  ajireed  tliat  the  aibitrators  who  found  themselves 
in  the  minority  on  certain  questions  were  not  to  be  understood  as  with- 
drawiii"'  their  \otes.  Under  this  reservation,  the  linal  text  of  the 
award  was  fixed  and  settled,  l»y  a  unanimous  votc^  of  the  arbitrators, 
in  the  form  annexed  to  the  present  pi'otocol. 

The  Tribumtl  decided,  unanimously,  that  in  conl'(»rmit\  with  the 
directions  of  the  treaty  of  l-'ebi  u.iiy  LMItli,  ISWJ,  two  copies  of  the  award 
shoidd  be  prepared  and  si/ned  lo  be  handed  to  the  two  auents  of  tin; 
United  States  of  America  ami  of  (Ircat  iSritain,  and  that  a  third  copy 
slumld  also  be  prepared  and  signed  to  be  tiled  in  the  archives  of  the 
arbitration,  which  will  icmaiii  conlided  to  the  I'rench  (lovernment. 

A  simihir  decision  was  adoi)ted  as  lej^ards  the  (b-claralions. 

Mr.  Justice  Harlan  then  submitted  the  following;-  nu)tion,  which  was 
}ido])ted  by  a  iinanimotis  v(»te  of  the  arbitrators: 

The  lifjlit  in  rt'scrvi'd  to  vmcIi  nihil  rjitor  tn  tih'  with  the  scirctiiry  of  this  TrH>mi;il, 
litany  liiin' after  its  adjoinnnn'iil.  and  licldrc  Iho  ist  ihiy  of  .laimary,  IN'.U.  an  opin- 
ion or  opinionn  iiiioii  tlii'  i|iii'sti<)iis  or  any  of  tlniii  Hulimittrd  for  di'tetiiiJiiatiDii,  aii<L 
ttiu'h  opinion  or  opinions  Hhall  he  regarded  as  an  uninx  to  this  jirotoiol. 


70 


PROTOCOLS. 


The  Tribunal  (Iccidcd  to  iiKM't  on  Tuesday,  Auf>ust  lotli,  at  10  a.  m., 
Avitli  dosed  d.iors,  lor  the  si.nnatuie  of  the  awar<l  and  the  deehiratioiis, 
and  iinniedi.iteiy  Iheiealter,  in  ])nl)lie  inee^^iny,  for  the  delivery  of  the 
a\\in«l  and  tiie  (h'clarations  to  tiie  ajLjents  of  the  two  (lovernnieuts. 

Done  at  Paris,  tlie  1  Itli  of  Auj;'ust,  1803,  and  signed: 

The.  I'nxiihnl:    AlIMI.   DE   CoUKOEL. 
TheSirirlarii:    A.  LaIBEUT. 

Translation  certified  to  be  aeeuratc^: 

A.    HAIIJ.V  151  ANCIIAKM),  ) 
il.  UUNlIsUUAME,  ) 


ll 


PlfOTOCOT;  LV. 

MEETTN(i    OF   Tl  KSDA  Y,  AUG  TST  15,  1803. 

The  Tribunal  assejnbled,  with  closed  doors,  at  1()  a.  ni.,  all  the  arbi- 
Iratoi's  beinj;'  present. 

The  seven  arbitrators  si<>iied  the  final  award  of  the  Tribunal,  in  tiij)- 
li<'ate  eoi)ies,on  parclmu'iit,  one  of  these  co])iesbeiii,<i'  for  each  of  the  par- 
ties, in  eonfojinity  with  the  directions  of  the  treaty,  and  the  third,  by 
virtue  of  a  jyrevious  decision  of  the  Tribunal,  to  be  preserved  in  the 
archives  of  the  arbitral  ion  «'onfided  to  the  sale  keepinj;'  of  the  French 
(iovernnuMit. 

The  orijiinal  text  was  accompanied  by  an  Kufflish  version,  which  the 
seven  arbitrat<U'S  have  cert  ified  by  their  signatures  thereto  as  beinj^'  true 
and  aceurate. 

The  seven  arbitrators  also  sijiiied.  in  tiiplicate  eoi)ies,  on  ])arelnnent, 
the  declaratiitns  to  be  lefeired  by  them  to  the  two  (iovernments  of  the 
United  States  and  of  (Ireat  P>ritain  and  certified  the  English  version 
thereof  tobe  true  and  accurate. 

Lord  liannen  and  Sir  John  Tboinpson,  while  si<;'ninji',  slated  in 
writing' tliat  they  approved  only  Dcclaraticnis  I  and  III. 

The  arbitrators  then  considered  a  re(|nest  which  had  been  trans- 
mitted to  them  by  tlic  ai;ents  of  the  I'liitecl  States  and  of  (ireat 
JJritain.  to  settle  the  allitwniices  which  it  would  be  })ropcr  to  make  to 
the  s<'cretaries  who  had  assisted  the  Trii)nnal  in  its  labors,  and  drew 
up  a  statement  of  these  allowanc«'s.  which  was  handed  to  the  a>;ents 
of  the  two  (iovernments,  tlirouiih  the  care  of  Mr.  dustiee  llarlan  and 
of  Sir  .lohn  Thompson. 

At  11  o'clock  the  meetini;  with  closed  doors  came  to  an  end  and  was 
immediately  followed  by  a  public,  mcetinj^'. 

All  the  arbitrators  w<'re  ]. resent,  also  the  afients  of  tlie  (lovernnienls 
of  the  United  States  of  America  and  of  Great  liritain. 

l'])on  the  reipiest  of  the  i>resid','nt,  Air.  Inibcrt,  secretary  of  the 
Tribunal,  handed  to  the  Ibniorable  -bdin  W.  Foster,  aaent  of  the  (Jov- 


PROTOCOLS. 


71 


eminent  of  the  United  States  of  Americii,  tlie  sifjncd  copy  of  tlie 
award  of  the  Tribunal  intended  for  the  (lovernnu'nt  of  the  United 
States. 

Mr.  linbert  then  lianded  to  tlie  Honorable  (Hiarles  H.  Tiipper,  ajjent 
of  Her  IJritjMinie  Majesty,  the  sis^ned  <!opy  of  the  award  of  the  Tri- 
bunal intended  for  the  Government  of  Her  Uritannie  Majesty. 

The  two  eopies  of  the  declarations  of  the  arbitrators,  sij;ned  by  theiu 
and  intended  for  the  (lovernnicnts  of  tlie  Ignited  Statcsof  America  aiul 
of  Great  Britain,  were  handed  iu  the  same  ibrin  to  the  aj;ents  of  the 
two  Governments. 

Tlie  president  then  spoke  as  follows: 

Genti.emkn:  Now  wo  Imvf  eoinc  to  Die  oiid  of  our  task.  We  have  done  our  best 
to  accomplisli  it,  without  couceiiliiiju;  I'roiii  oiirsi'ivcs  tho  tlitliciiltii'.s  which  ooiiipli- 
cated  it,  nor  thi;  heavy  respoiisibiiitie.s  which  it  has  iiii)io>^<-(l  mion  us.  Selected 
from  v.arious  nationalities,  wt)  have  not  considered  ourselves  the  representatives  of 
any  one  in  ijarticnhir,  nor  of  any  i;'(>veiiiment  or  any  liniiiaii  power,  hut,  s(de]y  j^uidcd 
by  our  couseieuee  and  our  reason,  we  have  wished  only  to  act  as  one  of  thosi^  coun- 
cils of  wise  men,  whose  duties  were  so  carefully  dcliiietl  hy  the  old  ca])itulaiics  of 
France. 

To  assist  us,  we  have  had  at  our  disposition  a  lilirary  of  documents,  compiled 
with  extreme  care,  and  in  ordt^r  that  we  might  not  lose  our  way  among  so  many 
sources  of  information,  men  holding  a  high  rank  among  the  most  learned  jurists 
and  <do<iuent  orators  of  which  the  Old  or  New  Woilds  could  boast  have  he(^n  will- 
ing 80  liberally  to  Itestow  upon  us  their  advice. 

During  weeks  and  months  our  laliors  have  been  prolonged,  and  it  constantly 
appeared  tliat  some  new  matter  had  risen  before  us  ami  that  some  new  problem 
]iresscd  ui)on  our  attention. 

To-day,  on  this  great  holiday,  we  are  asstimblcd  to  inform  you  of  the  result  of  our 
abors,  hoping  with  all  our  hearts  that  they  may  be  protitable  to  iran,  and  conform- 
able to  the  designs  of  Him  who  rules  his  destiny. 

We  know  that  our  work  is  not  perfe('t;  we  feid  its  defects,  which  must  l)e  iidierent 
in  all  human  elVorts,  ;ind  are  conscious  of  its  weakness,  at  least  iu  ceitMin  points 
as  to  which  we  liiid  to  base  our  action  on  circumstauces  necessarily  liable  t(   c!i;;iigf. 

The  declar.'itions  which  we  ollci'  to-day  to  the  two  agents,  and  which  we  hope  will 
be  taken  into  consideration  by  thcii-  (Jovcrnmeuts,  indicate  some  of  t'ae  causes  of 
the  necessary  im|ieif'e<-tiou  which  we  ha\(*  mentioned. 

We  have  felt  (ddiged  to  maintain  intact  t  he  tiindaiiicntal  princip|(>s  of  that  august 
law  of  nations,  which  extends  itself  like  the  \ault  of  heaven  above  all  countries, 
and  which  borrows  the  laws  of  nature  herself  tu  ]irotcct  the  ])eoplcs  ot'  the  earth, 
one  against  another,  by  inculcating  in  them  tln^  dictates  of  mutual  good  will. 

In  the  regulations  which  we  were  charged  to  draw  up  we  have  lia<l  to  decidt* 
between  eonllieting  rights  and  interests  which  it  was  didieult  to  reconcile.  The 
(lovernineuts  of  the  I'nited  States  of  America  and  (ii'cat  lirilaiu  have  pronnsed  to 
accept  and  execntt^  our  decisions.  (Iiir  desire  is  that  this  voluntary  engagement 
may  not  cause  regret  to  either  of  them,  though  we  ha\e  required  of  both  sacrilices 
whieli  they  may,  ])erha])s,  regard  as  serious.  This  ])art  of  our  work  iuaugurati'S 
great  innovation. 

Hitherto,  the  nations  were  agreed  to  leave  out  of  sjiecial  higislation  the  vast 
domain  of  the  seas,  as  in  times  of  old,  according  to  the  poets,  the  earth  itself  was 
comiiKm  to  all  men,  who  gathered  its  fruits  at  their  will,  without  limitation  or  con- 
trol. You  know  tha*^  even  to-day,  dreamers  believe  it  possible  to  luing  back  liMuian- 
Ity  to  that  golden  age.  The  sea,  however,  like  the  i-arth,  has  liecome  small  for  nu-n, 
who,  like  the  hero,  Alexander,  and  uo  less  ardent  for  lalior  than  he  was  for  glory, 


72 


PRO'I'OCOLS. 


I 


led  coiiliiicd  ill  :i  woilil  too  iifividw.  Our  work  is  ii  (irst  (ittompt  at  n  sliariiigof  tlio 
])i'oiln<'ts  III'  till-  oi'CMii,  wliicli  liiis  liitlu'i'lo  Ix'cii  niitliviilnl,  and  at  ap|))\iii<>;  a  nilit 
to  tliiii;i-s  wliirli  csca))!!!  (iVfiy  otiicr  law  Imt  tjiat  of  (he  tirst  (><'('ii|iaiit.  It'  tliiH 
at(ciii|it  sii(('ce<ls,  it  will  donbtluss  be,  tollowtMl  by  iinniei'ons  iiiiitationH,  iiiitil  the 
(Mitiie  jdani't,  until  tin-  watiM'H  as  well  as  llic  continentH  will  liavo  l>"coni«'  llic  siib- 
J<'(t  of  a  (•ar(^riil  partilion.  Tlicn,  iicrliaits,  tho  ('oni'(')it ion  of  jnopcity  may  fliaiif^e 
aiiion;^st  iikmi. 

IJcrorc  layinjf  down  tlm  inandalt^  wliicli  we.  lia\o  n-fcivod  in  trust  from  two  <;roat 
(iovi'iiiniciits.  \\{>  dt'sirtj  to  oll't-i'  our  ;;iat  itudi:  to  all  lliosc^  wliosc  cH'orlH  bad  tor  their 
object  to  t'aeilitivte  I  lie  aecoiiipiislinieiit  of  our  task,  and  esjiecially  to  the  a<i<'nts  and 
<'onns('l  of  t  lie  t  wo  (oi\  ('rnnieiits  of  tlie  I  'iiited  States  of  Aniel  ita  and  (ireat  Hritain. 

And,  now,  a  freiieliiiian  may  be  ]ierinitt<!d  to  nm',  a  word  wbicli  bis  aneestors 
employed  wlieii  tbey  siin^  tli(*  lay  of  tlieir  ;;reat  l''mperor,  and  to  say  to  ail  of  yon: 
(ientlenien.  may  yon  retain  a  kind  reiiieinbrunee  of  sweet  l'"rance! 

TiOi'd  Ilaimcii,  IIkmi  a(](li'<'ssiii<>-  llie  im'sidcnt,  said: 

Mr.  de  Conreel,  on  belialf  of  your  late  eollcaniies,  I  bave  to  ox])reH8  my  fjreat 
I'efflet  lliat  tlie  absiiiee  of  I  be  I'lesiilelit  of  the  l''reneli  It'epnblie  and  Mr.  De.vi.dle 
from  I'aris  prevents  onr  wailiiiii;  ujioii  tliem  befort!  leaving  this  city  wliere  wi!  liav»i 
been  so  kindly  treated.  AVe  must  therefore!  bejr  yon,  as  the  French  nicmboi' of  tins 
late 'J'riliniial  of  Ai  liitiat inn.  to  convey  to  the  I're.sident  and  to  the  l'"ieneli  (Jovern- 
ment  the  exjiressidii  of  our  sentiments  of  profound  jxi'atitmb^  for  the  ;ii'acions  reeej)- 
tion  and  <feiirrons  ]i(isi)itality  which  they  bavi'  ext<'ii(lcd  to  ns.  Onr  thanks  are 
speciiilly  i\iH'  to  Mr.  Dcvclle,  who,  so  much  to  bis  own  iiieonvenieiice,  has  provided 
ns  ill  lliis]ialai  <!  with  so  splendid  ,1  domicile,  and  we  olfer  bini  (uir  apologies  for  ha  vine- 
so  lonn'.  thoui;li  in\  iilnnlai  ily,  trespassed  on  bis  kindm^ss. 

;\nd  now,  Mr.de  (Jonrcel,  1  have  to  diseharffc  a  duty  which  gives  nu;  ]ieenliar 
satisfaction.  1  have  t«>  cxjircss  to  yon  our  liieli  appreciation  of  the  manner  in  wbicli 
yoii  hav(!  jiresided  ovci' onr  deliberations,  'i'be  |>iiblic  has  had  the  oj)port unity  of 
witnessing  the  sagacitx ,  the  learniiij;',  ami  the  courtesy  with  which  yon  have  guided 
the  iirocecdiiigs  during  the  argnmcnts.  Voiir  cidleaguesonly  can  know  liow  greatly 
those  (|iialitries  have  assisted  us  in  onr  jtrivate  conferences,  Let-  me  add,  that  onr 
intimate  relations  with  you  have  taught  lis  to  regard  you  with  the  warmest  esteem 
and  alfection.     rniiiit  me  to  say  that  yon  have  won  in  eacli  of  ns  an  attached  friend. 

I  must  not  coiiclnde  without  an  allusion  to  the  remarkable  occasion  wbicli  lias 
bidiiglit  us  together.  We  trust  that  the  result  will  |ii-ove  that  we  liave  taken  ]iart 
in  a  great  bistoiiinl  tr.'insact  ion  fruitful  in  good  for  the  world.  Two  great  luitious, 
in  submit  t  ing  tlieir  dilleremes  to  arbitrat  ion,  have  set  an  exaui]de  which  I  doubt 
not  will  be  followed  from  time  to  time  by  others,  so  that,  the  scourge  of  war  will  be 
more  and  moi((  repressed.  ]'ew  can  b(>  so  sanguine  as  to  e\])ect  that  all  intermit  ional 
(liiariids  will  be  speedily  set  tied  by  arbitration,  instead  of  by  the  dread  arbitraiiu>nt 
of  war;  but  each  occasion  on  which  the  peaceful  method  is  adopted  will  basteii  the 
tim(>,  when  it  will  be  the  rule  and  not  the  exception. 

One  ol'oiir  jioets  has  said  that  vwvy  jnayer  for  universal  jteace  avails  to  expedite 
its  coining. 

We  lia\e  done  more  than  join  in  such  a  supplication;  wo  may  hojte  that  we  liave 
been  the  liiimble  iiistrnnuMils  thrmigb  whom  an  answer  has  been  granted  to  that 
jirayer  which  I  doubt  not  ascends  from  the  hearts  of  these  two  kindred  nations,  that 
jicace  may  forever  ])ri'vai I  between  them. 

1  bid  you  heartily  f.ircwell. 

Senator  Morgan  tlio  1  addressed  tlit^  Ibllowiiiji'  reiiiarlvs  to  ex]>ress  his 
share  in  (lie  seiitiiiieiiis  wliieli  Lord  Ilaiiiieii  had  Just  iiiterjireted: 

The  ailiitrators  on  the  p;irt  of  the  rniteil  States  most  sincerely  unite  in  the  very 
happy  exprcssi  ins  that  have  tiiillen  from  liurd  Hanneu,  of  grateful  aiipreciutiun  of 


PROTOCOLS. 


73 


'Stct'lll 

ii'iid. 

•li  llilS 

"11  ))arr. 
it  ions, 
(ti)iilit 
will  lie 
itioiiitl 
I'iiint'iit 

It'll   lliO 

qxMlito 

e  Jiave 
to  tliut 

IS,  tllllt 


'ss  his 


10  very 
tioii  (if 


tlio  H|>lenili«l  lidsiiitiility  <it'  tlic  I'l-nicli  (iiivcriiiiifnl  ami  pooplc.  We  liavn  liecii  tlu'ir 
mu'sts  for  many  nioiitlis,  anil  liavn  Iit'en  nndcr  Hh!  slicltcr  of  tln-ir  laws  an<l  in  tlio 
pr«(s«MU'»'.  of  tlifir  ^jraiHl  and  licaiitifnl  fivili/atioii.  and  diiriiifr  all  tliaf  tiiiit'  wo  have 
felt  that  onr  welcome  di<l  not  cease  to  lie  cordial. 

If  we  should  take  a  niwrow  view  of  the  results  of  this  ailiitr;itioii,  the  Tuited 
StateK  would  have  a  regret  that  the  iiiijiortant  Judicial  (ineslioim  we  have  lieiMi  con- 
Kidering  wore  not  Htate<l  in  aliroader  form  in  the  treaty  hetweeii  these  jjreat  Towers. 
The  ojijiort unity  was  olfered  when  the  treaty  was  in  iinicess  of  formation  to  have 
presented  in  a  more  ei|nitalilo  lif^'it  thi;  rij^hts  <if  the  iiatioiis  to  whose  islands  ami 
coasts  the  fiir  seals  haliitiially  n^sort  for  places  of  aliode  :iiid  shelter  in  the  summer 
season;  to  control  and  ]irotect  them  under  the  lejral  iiili's  and  intendmciit.s  that 
ajijily  universally  to  the  animals  that  are  classed  :is  domestic,  or  domesticated  ani- 
mals, heciuise  of  their  usefulness  to  men. 

My  collcafjne  and  1  concurred  in  the  view  that  the  treaty  ]ircHented  this  siilijec^t 
for  consideration  in  its  liroadest  asjiect.  Our  honoralile  (Milleayiies,  howiiver.  did 
not  so  construe  the  s(!()pe  of  the  duty  prcscrilicd  to  t  he 'rrihiinal  liy  the  treaty.  They 
considered  that  these  ([Uestions  of  the  rij,jht  of  property  and  jirotcctioii  in  respect  to 
tlu^  fur-seals  were  to  lie  decidecl  upon  the  i'xistinu  state  of  the  law,  and,  lindiiii;  no 
existiiif;  precedent  in  the  intcinational  law,  they  did  not  feel  warranted  in  <■.  •  itin;^ 
one. 

As  the  rijjhts  claimed  liy  tlic  United  .States  could  only  lie  supported  liy  interna- 
tional law,  in  their  estimaliuii,  and  iuasiniwh  as  that  law  is  silent  on  the  suliject, 
they  felt  that  under  the  treaty  they  could  tind  no  Ic^al  foundalinn  for  the  rij;hts 
claimed  that  extended  heyond  the  limits  of  the  territorial  jurisdiction  of  the  United 
ytates. 

This  riiliu}?  made  it  necessary  to  resort  to  the  ]iower  confer; ed  upon  the  Triliiinal 
to  establish,  liy  the  authority  of  both  (io\ernmcnts,  rej^iilations  for  the  preservation 
and  protection  of  the  fur  seals,  to  which  the  treaty  relates.  In  this  ni-w  ami  untried 
Held  of  experiment,  much  omliarrassment  was  found  in  conllictiiii;  interests  of  an 
imiiortant  character,  and  yet  niorci  dilliciilty  in  the  uncertainty  as  to  th((  facts  n]ion 
which  re;j;nlation8  could  lie  liased  that  would  li(>,  ;it  once  just  to  those  interests,  and 
\v<inld  atford  to  the  fur-seals  projier  preservation  ,iud  )irotecti(in. 

The  United  States  wi'il  fully  nnderstaiid  and  ap]ireii,ite  t  hose  diUiculties,  and  will 
aee(!pt  the  final  award  as  the  licst  jiossiblo  result,  under  exist  iiiii  ctinditions.  A  very 
lare-e  measure  of  jirotection  is  secured  by  the  rcfjulations  ado]ited  by  the  Triliunal 
to  the  Alaskan  herd  of  fur-seals:  and  the  virtual  icpression  of  the  use  of  lirearms  in 
]ielagic  sealing  is  an  earnest  and  wise  guaranty  that  llio.sc.  cnuiiiion  interests  may  las 
jiursued  without  ]iuttiiig  in  serious  jieril  the  jieaec;  of  the  two  (■<iiinlries. 

It  is  a  great  ]ilcasiire  to  tlu^  .-irliitrators  appointed  on  tin;  part  of  the  United  .stales 
that  they  can  bear  the  highest  testimony  to  the  ability,  integrity,  jiatieiice,  i  nil  list  ly, 
und, judicial  impartiality  of  their  iiillciigiics  in  this  Tiibiimil. 

Our  labors  have  been  ardiiuns  and  protracted,  but  have  been  atleiided  with  uni- 
form courtesy  and  good  feeling  on  tlw^  part  of  all  the  members  of  the  Tribunal. 

We  lio|ie  for  still  broader  and  better  re-iulls  fiom  the  foundations  we  have  laid  iu 
this  new  held  of  international  agieeiiiciils. 

To  lh(^  iircsident  of  the  Tribunal  we  owe  a  debt  that  we  gratefully  ;icknowledge, 
that  he  has  so  ]iatieiitly  and  with  such  dislinguislied  ability  discharged  the  dilliciilt 
duties  of  his  position. 

The  agents  of  the  icspective  Goveriinients  have  jirepared,  at  great  expense  of 
labor  and  with  uniiMial  skill  and  industry,  I'very  !ivailalile  fact  tinit  would  throw- 
any  light  upon  the  matters  in  controversy,  and  the  counsel  Imve  dealt  with  the  great 
masses  <if  evidence  so  prepared  with  that  marked  ability  for  which  t  he,\  hiivo 
become  renowned  ujioii  other  occasions.  Conscious  of  having  done  ;ill  we  could  to 
reach  conclusions  that  arc  Just  and  will  be  salutary,  \\v  close  onr  labors  in  tlm  hope 
that  they  will  be  acceptable  to  all  nations. 


74 


PROTOCOLS. 


The  luesident  thereupon  said  that  lieclieerfully  aoreptcd  themiasion 
totranainittothe  1 'resident  of  the  French  Republic  and  to  Mr.  Develle 
the  thanks  of  tlu^  members  of  the  Tribiiiuil. 

He  thanked  i)ersonally  Lord  llannen  and  Senator  Mor^^an  for  the 
sentiments  which  they  iiad  expressed  coimerninff  himself. 

He  then  annouiu^ed  that  the  Tribunal  had  closed  its  labors,  and  at 
12  m.  the  Tribunal  adjourned  sine  die. 

Done  at  Paris,  the  15th  of  August,  1893,  and  signed : 

The  President :  Al.l'ir.  I)K  (JOTTROEL. 
The  Agent  for  the  United  States:  JOIFN   W.    FOSTEII. 
The  Aijent  for  Great  Britain:  ClIARLES    H.  TUITER. 
The  Secretary :  A.  ImuERT. 
Translation  certified  to  be  accurate: 


A.  Uailly  Blanohard,  )  .,    .,       ,     . 
Ti    ^1  }  to- ^eeretariei. 

H.   CUNYNGHAME,  ) 


I 


A  WARD 

OK 

THE  TRII'>UNAL  OF  AllBITRATION 

CONSTITUTED 

UNDER  THE  TIIEATY  CONCLUDED  AT  WASHINGTON, 

THE  2yTlI  OK  FKHIIUAUY,  18!J2, 

HKTWKKN 

THK  UNITKlt  STATKK  OF  AMHKICA 

AND  IIKK'  MA.IKsrV  TIIK  C^IKHN  OF  TIIK  FMTKD  KINGDOM 

OF  (iKKAT  liini'AlN  AND  IIIEI.ANU. 


Wlierons  by  a  treaty  betwcoii  tlio  llnitcd  States  of  Ameiica  and 
(Ireat  IJiitaiii,  siiiiied  at  VVasliin^toii,  l'\'hrnary  li!>,  J.S!)L5,  the  ratilica- 
tioii.sof  wiiicli  l>y  tlie(i(>veiimientsor  the  two  countries  were  exelian<;«'«l 
at  London  on  May  tlieTtli,  1S!»2,  it  was,  anion;;st  otliertliinj^s,  aj>reed  and 
coneluded  tliat  llie  (juestions  wliieli  liad  arisen  l)etween  tlie  (xovern- 
niiiit  ol'  tiie  United  States  of  Ameriea  and  tlie  Government  of  Her 
Britannic  MaJ«-sty,  conccrnin;^'  the  Jurisdictional  rij-hts  of  the  United 
States  in  tiie  waters  of  Ueriiij^'s  Sea,  and  concerniiijj  also  the  preser- 
vationof  the  fur  seal  in  or  habitually  resortinf"-  to  the  said  sea,  an«l  the 
rifjhts  of  the  citizens  and  subjects  of  eithei'  c,(uintry  as  re{;ards  the 
takinji'  of  fur  seals  in  or  habitually  resorting  to  the  said  waters,  should 
be  submitted  to  a  Trii)unal  of  Arbitration,  to  be  c'uni»(»sed  of  seven 
Arbitiators,  wiio  should  be  appointed  in  the  following  manner — that  is 
to  say:  Two  should  be  named  ity  the  President  of  the  United  States; 
two  should  be  named  by  Her  llritannic  Majesty;  Ills  iCxcelleney  the 
{'resident  of  the  l''ieuch  Ixcpublic  siiould  be  Jointly  re(piested  by  the 
High  (Contracting  Parties  to  name  one;  llis  Majesty  the  King  of  Italy 
should  be  so  requested  to  name  one;  Mis  Majesty  the  King  of  Sweden 
and  Norway  should  be  so  lecjuesttMl  to  name  one;  the  seven  Arbitrators 
to  be  so  nanu'd  should  be  Jurists  of  distinguished  reputation  in  their 
respective  countries,  and  the  selecting  Powers  shoidd  be  re<|uested 
to  choose,  if  i»ossihle.  Jurists  who  are  ae(iuainted  with  the  Knglish 
language: 

And  whereas  it  was  further  agreed  by  Ai-tieleII  of  the  said  Treaty 
that  the  Arbitrators  should  meet  at  Paris  within  twenty  days  after  the 

76 


7G 


AWARD    AND    DKCLAUATIONS. 


i 


(lolivcry  of  Mic  Coiintoi' Cases  iiiciilioiu'd  in  Aitirl<»  IV,  and  slionld 
pi'occcd  inipartiiilly  and  carctully  to  cxaniinc  and  decide  tlie  <|nestinns 
uiiicli  had  been  or  slioidd  be  laid  before  tiieni  as  in  the  said  Treaty 
l>ro\i(!edon  tiie  part  of  the  (l<>v<'rnnients  of  tlie  United  Stales  and  of 
Her  Uritannic  Majesty,  respeetively,  and  that  all  (piestions  (Mnisideicd 
by  the  Tribnnal,  inehiilin^'  tin*  final  dtM-ision,  should  be  determined  by 
a  majority  of  all  the  Arbitrators; 

And  whereas  by  Aiti(;le  \'l  of  the  said  Tn^aty,  it  was  farther  pro 
vided  as  f(»llows: 

III  (Iccidiiiji  tlio  iiiiitttTH  Niiliiiiittfil  1(1  llic  siiid  Ailiilrntori,  it  is  jiki'i'''''  t'li't  (lie 
roilii\viii<r  live  iiiiiiils  HJiiill  lilt  siiliiiiitli'd  to  Mit'iii,  in  iiriltT  tliat  llii'ir  iiwiird  >Ii:ill 
ciiiiii'iK'o  !i  diHtiticI  dcci.sion  ii|ii>ii  ciicli  of  Nsiid  livtt  |ioiiits,  to  wit; 

1,  Wliiit  exclusive!  Jiii'isdirl  ion  in  tin'  Nt'ii  now  known  as  \]n'  Hcriii^t's  Sm,  iind  wliiit 
oxcliisi\  <!  ri;;)its  in  tli**  seal  lisliciirs  llicrcin,  did  K'lissia  nssci  I  and  cMMiist'  pritir  iind 
nji  to  tiie  time  of  tin'  fcssion  oC  Alnska  to  (he  I'nilcd  States? 

'J.  Ilow  far  wcM't!  IIu'sh  clniniH  orjiirisdirl  ion  as  to  lln'  seal  listuTics  rccojiiii/cd  and 
(Minrcdfd  li\  (iit'iit  Itritain? 

',i.  Was  tlif  liody  of  water  now  known  as  tin'  HcriiiK's  Sea  ini'lndcd  in  tlii'  idirasc 
I'lirijic  Ocean,  an  used  in  the  'I'rc^aty  of  tH2r>  Ix'twct'ii  (iicat  Mritain  and  IJiissia;  and 
what  rights,  if  any,  in  tlie  Ht^rin^f's  Sea  were  lielil  and  exeliisivoly  cxer<'ised  liy  K'lissia 
afu-r  said  'treaty  f 

<t.  Did  not  all  th'^  riglitH  of  Kiissia  as  to  Jnrisdietion  and  as  lo  the  seal  lislierics  in 
IJerinj^'H  Soa  oast  of  the  water  honndary,  in  tlie  'I'lcaty  liet  ween  the  t'nited  States  and 
Ikiissia  of  tlioIiOtli  of  March,  18t)7,  jiass  iiiiiiii|iaired  to  tlu^  United  States  iiniler  that 
Treaty  f 

5.  lias  the  United  States  any  ri}>ht,  and  if  so,  what  ii;;Iit  of  i)rotecti()ii  or  ]iro|ierly 
in  the  fiir-seals  fre(iiientin<{  the  islands  of  the  United  Sta'es  in  l!eiin}^  Seii  when  such 
seals  are  found  outside  the  ordinary  three-inile  liiiiit  ? 

And  whereas,  by  Artielci  VII  of  the  said  Treaty,  it  was  further  ayreed 
as  follows: 

If  the  determination  of  the  foreij;oinf^  ((uestions  as  to  tiie  exclusive  Jurisdiction  of 
the  United  States  shall  leave  the  subject  in  such  jiosit  ion  (hat  t  lie  concurrence  of 
(Jrcat  Hritain  is  necessary  to  the  estalilishnient  of  h'cfi'iilat  ions  for  the  ]iro|ier  ])rolec- 
tion  anil  ]>reHervation  of  tlie  fnr-seal  in,  or  hiihitnally  resortinii  to,  tlie  lierinj;  Sea, 
the  Arbitrators  shall  then  deterniine  what  eoncnrient  Ifejriilations,  outside  the  Juris- 
dictional limits  of  the  resjiective  tiovernnients,  are  necessary,  ioid  ovci-  w  hat  waters 
such  reynlations  should  extend; 

The  llisli  Contraetiiif;  Parties  fnrtlierniore  a;;ree  to  cooiierate  in  seciirini;  the 
adhesion  of  other  I'owers  to  such  tfej^ulations ; 

Ami  whereas,  by  Article  VIII  of  the  said  Treaty,  after  recitinji'  that 
the  llifjh  Contractinj;"  Parties  had  found  themselves  unable  to  aj^rec^ 
upon  a  ri^ference  which  should  in(!lude  the  <|nestion  of  the  liability  of 
oiU'M  for  the  injuries  allej^ed  to  have  been  sust:iine<l  by  tiie  other,  or  by 
its  citizens,  in  connection  with  the  claims  presented  and  urf;ed  by  it, 
and  that  "they  were  S(dicitous  that  this  subordinate  question  should 
not  interrupt  or  loufjer  delay  the  submission  and  determination  of  the 
main  <|uestions,"  the  Ilij>'h  (Jontractiny'  Parties  agreed  that  "either  of 
them  might  submit  to  the  Arbitrators  anytpiestiou  of  fact  involved  in 
said  claims  and  ask  for  a  tinding  thereon,  the  question  of  the  liability 


sliould 

M'StiollS 

Tirnty 
H  iind  of 
isi<l('r(Ml 
lined  by 

lirr  pro- 


l    Hint    III)' 

\;\Vi\  sllilll 

Mini  wliiit 
|il'iiil'  iiikI 

ni/i'd  anil 

III'  ]ilirasi' 
issia  ;  anil 
liy  K'lissia 

islinii's  in 
<lali'.s  anil 
iiidrr  that 

r  jirupi'i  ly 
wlitsii  Minli 


r  ii;;nH'd 


(lictiim  of 

iri'rni'C!  of 

lirotei'- 

•rinji  Sra, 

till' jiiris- 

at  wati'iis 


unni 


till) 


iliji'  that 

o  ajii'oc 

ihility  of 

or,  or  by 

'd  by  it, 

I  should 

II  of  the 
'itlier  of 

olvcd  in 
liability 


AWAlin    AND   DKCLAUATION8. 


77 


of  oitlior  (i(»v<'iniiuMit  uiion  the  fiU'ts  found  to  be  the  subject  of  further 
iK'ootiiitioii;'' 

And  wlierciis  the  rresideiit  of  the  United  States  of  Anierica  named 
the  Iloiiorabh^  John  M.  Ihu'lan,  Justice  of  tlu^  Siipiciiie  ("oiirl  of  the 
I'liited  Stati's.  and  the  IJonorable  .loliii  T.  Aioryan,  Senator  of  the 
United  States,  to  be  two  of  the  sai<l  Arbitrators,  and  Her  l>rilaniiie 
Majesty  named  the  lli^lit  Honorable  Lord  JJiinnen  and  tlie  lloncnabki 
Sir  .John  Tliompson,  minister  of  justice  and  attoriiey-j;eneraI  l(tr  (Can- 
ada, to  lie  two  of  the  said  Arbitrators,  and  His  Excellency  the  Presi- 
dent of  the  Fremdi  Kepiiblic  named  the  I' iron  de  Courcel,  Seiiatoi, 
Aiiibassa(h)r  of  l^'iance,  to  be  one  of  the  said  Arbitrators,  and  His 
Majesty  the  Kinj^of  Italy  named  the  Manpiis  ICinilio  Viseoiiti  Venosta, 
former  IMinister  of  lM)iei;;ii  Affairs  and  Senator  of  the  Kiii;;(lom  of 
Itiily,  to  be  one  of  the  said  Arbitrators,  iiiid  His  Majesty  the  Kiiijj 
of  Sweden  and  Norway  named  Mr.  (lre{{ers  (Inini,  minister  of  state, 
to  be  one  of  tiie  said  Arbitrators; 

And  wliereas  We,  the  said  Arbitrators,  so  named  and  sijipoiiited, 
haviujn  taken  upon  ourselves  the  burden  of  the  said  Arbitration,  and 
liavinj;'  duly  met  at  I'aris,  proceeded  impartially  and  careiully  to  exam- 
ine and  decitb;  all  the  (iiiestioiis  submitted  to  us,  the  said  Arbitrators, 
under  the  saitl  Treaty,  or  laid  before  us  as  ju-ovided  in  the  stiid  Treaty 
on  the  part  of  the  Governments  of  ller  Bri'innic  INfajesty  and  the 
Unitetl  States,  n^sjiectively; 

l!fow  AVe,  the  said  Arbitrators,  haviii;;'  impartially  and  carefully 
examined  the  said  (juestions,  do  in  like  manner  \ty  this  ur  Awiird 
decide  and  determine  the  said  ([lU'stions  in  manner  followin;;.  that  is  to 
say,  we  decide  and  determine  as  to  the  live  iioints  mentioned  in  Article 
VI  as  to  wliicli  our  Award  is  to  embraeb  a  distinct  decision  ui>on  etu'li 
of  them: 

As  to  the  lirst  of  the  said  live  i»oiuts.  We,  the  said  Baron  de  Courcel, 
3Ir.  -Justice  Harlan,  Lord  Hannen,  Sir  .John  Tliom[)son,  Manpiis  Vis- 
coiiti  Venosta,  and  Mr.  (irejifers  Gram,  beiuj;'  a  majority  of  the  said  Arbi- 
trators, do  decide  and  determine  as  follows: 

r>y  tlie  I'kase  of  l.Slil  Russia  claimed  jurisdiction  in  the  sea  now 
known  as  the  l>eriii;i's  Sea  to  the  extent  of  lOt)  Itali.in  miles  from  the 
coasts  and  islands  beloii;;;inj^  to  her,  but,  in  the  eourse  of  the  negotia- 
tions which  led  to  the  coiicliisiou  of  the  Treaties  of  iS'Ji  with  the 
United  States  and  of  ISLT)  with  great  Britain,  linssia  admitted  that 
her  jurisdiction  in  the  said  sea  should  ha  restrictcul  Nt  the  reach  of  can- 
non shot  from  shore,  and  it  appears  that  from  that  time  up  to  the  time 
of  the  cession  of  Alaska  to  the  United  States  Russia  never  asserted 
in  fact  or  exercised  any  exclusive  ju  •isdiction  in  Jieriiif^'s  Sea  or  any 
exclusive  rifilits  in  the  seal  lisheries  therein  beyond  the  ordinary  limit 
of  territorial  waters. 

.     As  to  the  second  of  the  said  five  points.  We,  the  stiid  Baron  de  Gour- 
celj  Mr.  Justice  Harlan,  Lord  Hannen,  Sir  John  Thompson,  Man^uis 


78 


AWARD    AND    DKCr, AKATIONS. 


Viscoiiti  V«'in>stii.  iiixl  Ml'.  <Jr<'p>r.s  (Irain,  Itciiij;'  ii  miiJMrify  id'  lli<'  snid 
Ai'ititrators,  *lo  decide  and  deteniiiiio  that  (ireat  lirilaiii  did  iioi  reco;;- 
iii/.t'  or  coiieedc  any  <'Iaini,  npon  the  part  n\'  K'nssia.  to  ^^\ehlsive  Jnris- 
<lirtioii  as  to  t\w  seal  tisheries  in  lieiiii};  Sea,  ontside  of  orditiaiy  terii- 
toiial  waters. 

As  to  the  thii'd  (»1"  the  said  tive  poiids,  as  to  so  niiieh  tliereof  as 
re(|uiies  ns  to  decide  whetiier  the  liody  of  water  now  Known  as  tlio 
lierinj;  Sea  was  incluch'd  in  the  phrase  '•  I'acilic,  (h-ean"  as  used  in  the 
Treaty  (d"  IS'jr»,  bet  wc«'n  (Ireat  iSritain  ami  K'nssia,  We,  the  said  Ail.itra- 
toi's,  do  nnaininonsly  deci<le  and  <leterniine  that  the  ImxIv  of  water  iniw 
known  as  the  Ueiiii;;  Sea  was  inclnded  in  the  phrase  •'i'acilic  Ocean" 
as  used  in  the  said  Treaty. 

And  as  to  so  nuieli  of  tlie  said  third  point  as  i'e(|nires  ns  to  dccid(^ 
what  rijiids,  if  any,  in  the  lierin;;  Sea  were  held  and  exclusively  exer 
cised  by  K'nssia  after  the  sai<l  Treaty  <d"  KSl'."*,  W C,  the  said  I'.aroii  dr 
Conrcel,  Mi.  .Instice  Harlan,  liord  llannen.  Sir 'loiin  Thonipson,  Mar- 
(piis  N'isconti  N'eiiosta.  and  Mr.  ( 1  refers  (i ram,  beiii};'  a  inajorily  of  the 
said  Arbitrators,  do  decide  and  deteriiiine  tiiat  no  exclusive  rij;hts  of 
jurisdiction  in  Ueriiiii' Sea  and  no  exclusive  rijihtsas  to  the  se;'.!  fisheries 
therein  were  held  or  exercised  by  Kiissia  outside  of  ordinaiy  tiuritorial 
waters  after  tlie  Treaty  of  ISlM. 

As  to  the  i"  tth  of  the  said  live  points.  We,  the  said  .Arbitrators,  do 
nnaninioiisly  decide  and  determine  that  all  the  rights  of  K'nssia  as  to 
jurisdiction  ami  as  to  the  seal  tisheries  in  llerin;;' Sea,  I'iist  of  the  water 
boundary,  in  the  Treaty  between  tiie  Ignited  States  iiii<l  K'nssia  of  the 
;U)th  Mareh,  1S(»7,  did  pass  uniin])aircd  ti)  the  United  States  uider  the 
said  Treaty. 

As  to  the  lifth  of  the  said  (ivei»oints.  We,  the  said  I'.anui  de  Coiircel, 
Lord  llannen,  Sir  .K>hn  Tlioini»son,  Manpiis  N'iseonti  N'enosta,  and  Mr. 
(ireu'ers  (rriim.beinga  majority  of  the  sai<l  Arbitrators,  do  decide  and 
determine  that  the  IInite«l  States  has  not  any  rij;ht  of  i)rotcctioii  oi- 
property  in  the  fur  seals  fre(pientiny  the  islands  of  tiie  United  States 
in  Herinj>'  Sea,  when  such  seals  are  found  outside  the  ordinary  three- 
inile  limit. 

And  whereas  the  aforesaid  determination  of  the  foresoinji:  <iuestioiis 
as  to  the  exelusive.jiirisdietion  of  the  United  States  mentioned  in  Arti- 
cle VI  leaves  the  subject  in  such  a  jxtsition  that  the  concurrence  of 
Great  Britain  is  necessary  to  the  establishment  of  Kej;ulations  for  the 
jM'oper  protection  and  preservation  of  the  fur-seal  in  or  habitually 
resortiiifjf  to  the  Ueriii.n-  Sea,  the  Tribunal  havinj;  decided  by  a  maj(»rity 
as  to  each  Article  of  the  following  Kej;;ulations,  We,  the  said  Uaron  de 
Courcel,  Lord  llannen,  INlarquis  Viscronti  Venosta,  and  IMr.  Gic^^crs 
Gram,  assenting'  to  the  whole  of  the  nine  Aiticles  of  the  tbllowing 
Kejiulations,  and  being  a  niaj(U"ity  of  the  said  yVrbitrators,  do  decide 
and  determine,  in  the  mode  i)rovided  by  the  Treaty,  that  the  following. 


AWARD    AND    HKCI-AKATIONB. 


70 


lecidc 
owing- 


roiiciinj'iit  l?<';j:iilati<tii.s  diitsiih'  th«  Jiiiisdittioiial  limits  of  tln^  rcsprcv 
\\\v,  (iov<>i'iiiii(>iifs  iirc  iH'ccssiiiy  iiiiil  Mint  liicy  slicMild  cxIvimI  over  tlMi 
waters  lu>iciiiiit'tui'  iiiciitioiuMi ;  that  is  to  say: 

Airricr.K  I. 

Tlu>  (iovcriiinetits  of  tlie  rnitcil  States  ami  of  (ircat  llritain  sliall 
forbiil  tlieir  (iti/.ciis  aiid  siiiijccts  rcspcftivcly  to  kill,  caiiturts  or  pursue, 
iit  any  time  ami  in  any  manner  wli:it*'\<*r.  tlie  animals  rommonly  eallcd 
fnr  seals,  within  a  /on(^  of  sixty  miles  aronnd  the  l'ril>ilol'  islamis, 
inelusive  of  the  t<'rritorial  waters. 

Tlu*  miles  mentioned  in  tlu'  prerediii;;  para;;rapli  are  ;;eo};raphieal 
mil(\s  of  sixty  to  ;i  deforce  of  lalitnde. 

AltTKM,!-:  2. 

The  two  (lovernmonts  slndl  torbid  their  eiti/ens  and  siibjeets  res|»oc- 
tively  to  kill,  eapture,  or  pnrsiie,  in  any  manner  whatever,  dnrin^  the 
season  exten<linji,  each  year,  from  the  1st  of  May  to  the,  .'Mst  of  didy, 
hotli  inelnsive,  the  fur  seals  on  tlu^  hi;;h  sea,  in  the  part  of  the.  I'aeilie 
Oeean,  inehisiveof  the  IJerinj;  Sea,  whieli  is  siliiati'd  to  the  north  of 
the'trtth  <lejfre*^  of  North  latitude,  an<l  eastward  of  the  ISittii  dej;ree  of 
lon^itnde  from  (Ireeiiwieh  till  it  strikes  the  watei-  l)oiindary  described 
in  Article  I  of  the  Treaty  of  lS(i7  l»etw«'en  the  United  States  and  Kits- 
sia,  and  following'  that  line  up  to  i>ei'in<>  Straits. 

Al{'l'irT-K  ',i. 

Diirinj;'  the  perittd  of  time  and  in  tiie  waters  in  which  tlie  fur  seal 
tishiii};-  is  allowed,  only  sailin;;  vessels  shall  be  jiermitted  to  carry  on  or 
take  part  in  fui-seal  tishiu};'  operations.  They  will,  howevei-,  be  at  lib- 
erty to  avail  tlH'inselves  of  the  use  of  such  canoes  or  undecked  boats, 
propelled  by  paddles,  oars,  or  sails,  as  are  in  common  use  as  tishin^ 
boats. 

Article  4. 

Each  sailing  vessel  authorized  to  fish  for  fur  seals  must  be  provided 
with  a  special  license  issued  for  that  purpose  by  its  (lovernment  and 
shall  be  recpiired  to  carry  a  distinguishing  tiag  to  be  prescribed  by  its 
Goveriinieut. 

Artk^le  5. 

The  masters  of  the  vessels  engaged  in  fur  .seal  fishing  shall  enter 
accurately  in  their  ollicial  log  book  the  date  and  place  of  each  fur  seal 
fishing  operation,  and  also  tlii^  numl)er  and  sex  of  the  seals  captured 
upon  each  day.  These  entries  shall  be  communicated  by  each  of  the 
two  Govoi'iinients  to  tUe  other  at  the  end  of  each  iishing  seasoa, 


80 


AWAUU   AND   DECr.AUATloNS. 


I 

jr. 


Aktici-h  (). 

Tlio  (ISO  of  nets,  lii'e.irins,  and  i'X|>l(»siv('.s  shall  be  foibidflt'ii  in  tlie 
I'lir  seal  tisliinj;'.  'iliis  vest rict ion  sliall  not  apply  to  sliotjiuns  wlicii 
sucli  lisliinu'  takes  place  ontside  of  lU'viny's  Sea, during  tiie  season  when 
it  may  be  lawfully  carried  on. 

AiiricLH  7. 

The  two  (lovi'innients  shall  take  measures  to  control  the  litness  of 
the  Mien  authorized  to  en.uage  in  fur  seal  fishiuu';  these  men  whall  have 
been  proxcd  lit  to  handle  with  sullicient  skill  the  weapons  by  means  of 
which  this  lishinj;'  may  be  carried  on. 

AitT       B  8. 

The  n'gidations  contaiiu'd  in  tiie  precediufj^  articles  shall  not  iipply 
to  Indians  dwi'lling'  on  the  I'oasts  of  the  teiritoiy  of  the  I'nited  States 
or  <d'  (Jreat  IJritain  uiul  caiiyinj;'  on  fur  seal  lishiiiL;'  in  canoes  or 
undecked  boats  not  transi»ort<'d  by  or  used  in  connection  with  other 
vessels  and  propt'lled  wholly  by  iiaildles,  oars,  or  sails,  and  manned  i>y 
not  more  than  live  jtersoiis  cadi,  in  the  way  hitherto  piacticed  by  the 
Indians,  pro\ided  such  Indians  are  not  in  the  employment  of  other 
persons, and  piovided  that,  when  so  huiitinin  in  canoes  or  undecked 
boats,  they  shall  not  hunt  fur  seals  outside  of  territorial  waters  under 
conti'uct  I'oi'  the  delivery  of  the  skins  to  any  pei'scui. 

This  exemption  shall  not  be  construeil  to  atl'ect  the  niunici|)al  law  (d 
either  count ly,  nor  shall  it  extend  to  the  waters  of  Heriny  Sea  or  the 
waters  of  the  Aleutian  Passes. 

Nothinji'  heri'iu  coi.:,<ined  is  intended  to  interfei'(^  with  the  employ- 
ment of  Indians  as  hunters  oi'  otherwise  in  connecti(»n  with  fur  sealing;' 
vessels  as  heretotbre. 

AiM'icr.K  1>. 

Tlu'  concuiri'ut  regulation-;  hereby  determined  with  a  \  iew  to  the 
]»rotection  anil  preservation  of  tie  liu' seals  shall  remain  in  tbrce  until 
they  have  been,  in  whole  or  in  part,  abolished  or  modilied  by  eonunon 
aj;reemeiit  between  the  (io\  ernnu'Uts  of  the  llnited  States  and  of 
(ireat  Uritain. 

The  said  concurrent  ri\i;nlations  sliall  be  submitted  mery  lixc  years 
to  it  now  examination,  so  as  to  enable  both  interested  ( ioverunients  to 
consider  whether,  in  the  lij;ht  of  past  experience,  there  is  occasion  for 
any  modilication  there(d'. 

Ami  whereas  the('io\  erniai'Ut  of  Her  I '.ri tannic  Majesty  did  submit  to 
the  Tribumd  of  Aibitration  by  Article  \  111  (d'  the  said  Treaty  certain 
(|ue>'ti<uis  of  fact  in\'oI\ed  in  the  claims  referred  to  in  the  sai<l  Article 
\'lll.  and  did  also  submit  to  us,  tin;  said  Tribunal,  a  sLateuient  of  the 
said  facts,  as  follows,  tliiit  is  to  say: 


AWARD   AND    DECLARATIONS. 


81 


|\  (•   \«",IVS 
llUMlts   to 

lisioil  Inf 


Findings  of  fact  proposed  hi/  the  Aijeiil  of  (!  real  Uritain  mid  agreed  to  an  proved  hy  the 
Ayoit  for  thv  I'liital  Stntin,  and  xiihniiltcd  'o  the  Tvilinnul  of  Arbitration  for  its 
connidnalion. 

1.  Tliat  till'  HL'vcral  scnvclics  aiul  sci/iucs,  wliftlicr  ()t'slii]is  or  }j"ii<l''^.  ii'nl  tlie  sev- 
eral arri'sts  of  iiiaHiers  anil  cre\vs,  respectively  iiii'iitioiit'd  in  tlio  Schedule  to  the 
J?iitish  Case,  pa]L!;t's  1  to  GO,  iiu'lii.sivc,  wen'  iiiadf  hy  tlic  aiillniiity  of  the  riiitcd 
(States  (ioverninoiit.  'I'hi'  ((iicstioiis  as  to  tlic:  value  ol'  tlie  said  vesscds  or  tlieir  con- 
tents, or  either  of  tliein,  and  the  (|nestion  as  to  whether  the  vcshcIm  iiientioned  in  tlie 
Sehediile  to  the  British  Case,  or  any  of  them,  were  wholly  or  in  part  the  actual  |)ro|i- 
erty  of  citizens  of  the  llniteil  Slates,  have  lieen  withdrawn  from  and  have  not  liecn 
considered  by  theTrihiinal,  it  hcin^j  understood  that  it  is  open  to  the  United  States 
to  laise  these  (piestions,  or  any  of  them,  if  they  think  (it,  in  any  future  nejiotiations  as 
to  the  liahilit.v  of  the  United  Staivs  ('.  )vernnieiit  to  pay  the  amounts  mentioned  in  the 
Scliedtile  to  tlie  ISrstish  Case; 

2.  That  the  seizures  aforesaid,  with  the  (!xce)ition  of  the  ''  I'athiinder,"  seized  at 
Neah-Ihiy,  were  made  in  Herin.i;  Sea  at  the  distances  from  shiue  mentioned  in  the 
Schedule  annexed  hereto  marked  ''('"; 

',i.  That  the  saiil  several  searches  and  seizures  of  m'SScIs  were  made  hy  puhlic 
armed  vessels  of  the  United  States  the  connnanders  of  whitdi  had,  at   the  severtal 


times  when  tliev 


made,  from  the  I'.xccntive  Pc|iariincnt  of  the  (loveriiment  of 


the  United  States,  instructions,  a  cojiy  of  one  of  wliicli  is  annexed   hereto,  marked 
"A",  and  that  tlu!  others  were,  in  all  suhstantial  respects,  the  same:  that  in  all  the 


stances  in  which  ))roceedin,!;s 


had  in  the  Disl  riet  Couits  of  the  United  States 


result  mg 


omieniiiat  ion,  such   proceedin;;s  werc^  he^iun   h\  the  lilin;;()l'  lihels,  a 


coi)y  of  one  of  which  is  anuexod  hereto,  marked  "H",  and  that  tiie  lilieis  in  the 
other  proeeedinji's  were  in  all  suhstantial  resjx'cts  tlie  .-.ame:  that  the  alleged  acts 
or  olfeiises  for  which  said  several  searclies  and  seizurr-H  were  made  were  in  each  case 
(hnie  or  committed  in  licriugSea  at  the  distances  tt'om  shore  albresaid;  and  that  in 
each  case  in  which  sentt^nce  of  condemnation  was  [(assed.  except  in  those  cases  \\  hen 
tlie  vessels  were  released  .after  condemnation,  the  seizure  was  ado|)ted  hy  th(!  (lov- 
ernnunt  of  tin;  United  States;  and  in  those  cases  in  w  ii*'-li  the  vessels  were  released 
the  seizure  was  made  by  the  authority  of  the  Unit*»l  Statin;  that  the  said  lines  and 
iini>risonmeiits  were  for  alleged  lireaehes  of  the  iMotiieipal  laws  of  the  United  Stales, 


which  allt 


b 


)rcaches  were  w 


bolh 


>uimitt*>*  ill!  iJ^rin^'  Se.i  at  the  ilistances  from 


the  s 


hov 


Uort  ^an 


4.  That  the  several  orders  meiili.med  in  tli*-  .•■• 


'C 


arning  vessels  to  leave  or  tuot  ti 


vessels  of  the  United  States  the  coiiun 
when  they  were  given,  like  insiiuclions 
sels  so  warned  were  engaged  in  sealing  <> 
that  such  action  was  adoj)ted  by  the  i;., 

5.  That  the  Kistriet  Courts  of  the  Unif.  ^ 
or  talceii  for  the  purpose  of  c(mdemuini;  an.\ 
ule  to  the  Cas((  of  (freat  Hrilain,  pa_i  ^  1  totil),  in 


iii'iM-\ed  hert^to  inifl  m.'irked 

•  nuido  b     pnMic  armed 

at   the   se\erjt'l    liuies 

•>iio*t  at  t\miAviU£ii,  muI  th.'^'ttrW  ves- 

'  |HU)iose.  and 


iM'Wh'U'ii  iMiN  |.»ro.  eedingH  Were  luKl 


■1: 


d 


po 


wei'8  of  Courts  of  Admiralt\ ,  imduding  the 


|ii .  *»^  jMrisdictioi*.  b»t  lliatineacrb 


case  the  sentence  pronounced  by  the  Court  w;(.  l(||^«■^^  np/^m  the  gr»«H><i«  set  lorth  ii 


the  libel. 


B  S — VOU  I- 


inhiiiit  to 

icrtuin 

I  Article 

lit  of  till' 


S2 


AWAliD    AXD    JJECLAIJAT10N8. 


Anni.x  a. 

Ti:KA.SL1!Y    I)K1'.\I!I.M|;.\T,  OlKlCK    OF   TIIK    Srcr.KI  AIJY, 

WitHhingtoii,  .Ipril  21,  1SS6. 
Siu:  Refprriii;^  to  Dciiartiiifut  hitter  of  this  (hito,  diroitiiig  yoii  to  iirocoeU  with 
the  rcvciiiu!  steamer  Dear,  iiiidcr  your  coiiiuiaud,  tn  tlu  seal  ishiiids.  etc,  yoii  art) 
lielehy  ehithed  with  I'llU  power  to  elllbreetho  hiw  coiit  ;i  ilied  ill  tile  ]irovi.sioii.s  of 
iSeclioii  I'.Titi  of  tile  I'liited  Slates  Revised  Statutes,  and  directed  to  seize  all  ^•essels 
and  arrest  and  delivei' to  the  i)ripiier  authorities  any  oi  all  persons  whom  you  nniy 
detect  vi(datinj;'  the  law  referred  to,  after  due  notice  shall  liave  lii'cn  ^iven. 

Yon  will  also  seize  any  lii|nors  oi- llic-arnis  attenijiled  to  he  introduced  into  the 
country  witliont  proper  jiermit,  under  the  juovisions  of  Sectiim  liloo  of  \\n-  h'evised 
ytatules  and  the  I'roclamation  of  tlie  I'rcsident  dated  Ith  I'elirunry.  1870, 
Hesi)ectfully  yours, 
(Signed)  C  S.  I'.mik  iiiin, 

Aciirij  Svcittaiji. 
Cajii.  M.  A.  ilr.Ai.Y, 

Coiniaaiidiiiij  l^irruiK  Sli'dimr  I'nur,  Sun  FraiKiwit,  CaliJ'tiinia. 


An\i:x  R, 

IN  THE  DISTRICT  COURT   OF  TIIH  IMTi'.l)  STATES  FOR   THE  DIST.afT 

OF  ALASKA. 

Ar(ifsr  sri'.riAi,  1  i:i;.M,  UvsH. 


To  the  lloVurahlc  J.afaiivttv  Ihursoii,  .ImUjv  of  said  lliitlricl  Court: 

The  Hind  information  of  M.  1).  Ihill,  Attorney  for  the  rnited  States  for  the  District 
of  Maska,  who  )>rosecute8  on  h(dialfof  said  Fnited  Stairs,  and  heinu  present  hero 
in  Court  in  his  ])ro|U'r  person,  in  the  name  and  on  hehalf  of  the  said  Fnited  States, 
ajiainst  the  sidi  toner  Tlinriilmi,  her  tackle,  apji.ircd,  lioats,  carno,  and  furniture,  and 
ajfainst  ;ill  persons  intervening;  lor  their  inteicst  tlierein.  in  a  cause  of  forfeiture, 
alle.yes  and  informs  as  follows; 

That  diaries  A.  .Miiiey.  an  oflicer  in  tiie  Rev  eiinc-.Marine  Se;  \  ice  of  the  Fnited 
States,  anil  iMi  special  duty  in  the  waters  of  ijie  district  (d'  .\laska.  Iieretofore,  to 
wit.  on  the  tirst  day  of  Aueiist.  l."<^(!.  within  tlie  limits  of  ,\hiska  Territor.v,  and  in 
the  waters  tlieieof,  and  within  the  civil  and  judicial  district  of  Alaska,  to  wit, 
witliin  t  he  waters  of  tiiat  portion  of  iierine-  Sea  heioULjiny;  to  the  said  district  on 
waters  navi.ealde  from  the  sea  i>y  vessels  of  III  or  nnuc  tons  liiirdeii,  seized  tlio 
sliiii  or  'essel  (  ommoiily  called  a  schooner,  the  TIkii  iiIoii,  her  tackle.  ap]iar(d,  heats, 
car^ii.  ami  furniture,  lieine  thi>  ]iro]icrty  of  .-ome  person  or  ]icisoi!s  to  the  said 
Attorney  nnkn>i\\  n.  as  forfeiteil  to  the  I  nilcd  Slates,  for  the  follow  iiiij  causes : 

That  tlicsaid  vessid  or  schooner  was  found  en;;aji;cd  in  kiliini;'  fur-seal  within  th(> 
limits  of  .Maskii  Terrilory.  anil  in  the  wiiters  thcieol.  in  violation  of  Section  l!i.")()  of 
the  Revised  Statutes  ol'  the  Fnited  States. 

\ud  the  said  AlUU'ucy  sailli  lliat  all  and  sin!.',ular  the  premi-cs  are  and  were  true, 
and  within  the  Admiralty  and  iiiaritinie  jurisdiction  of  this  (  ouit.  and  tliat  hy 
r<'iis(Hi  thercol'.  and  hy  i'luee  of  the  statutes  of  the  Fniti'il  Slates  in  such  ca>es  made 
and  jirovided.  I  he  aforcuieiitioneil  and  dc--ci  ilied  sclnKUier  cu' vessel,  lieinn  a  \  essel 
of  over  20  Ions  liiirden,  her  tac  kle,  appand,  lioats,  cari^o,  and  turniture.  hccame  and 
are  forteited  to  the  use  of  the  said  Fnited  States,  and  thai  said  s(  hooiu'r  is  now 
witiiin  the  distrii-l  aforesaid. 

WluMcfore  the  said  Attorney  prays  the  nsiial  process  .nid  nuuiilion  (d"  Ihishonor- 
ahlu  C(nirt    issue  in    this   liehalf,  ami   tliat   all    itcisons    interested  in    tlie    hel'ore- 


AWARD    AND    DECLARATIONS. 


83 


ARY, 

roci'i'd  witli 
tc,  you  art) 
lovision.s  of 
(■  all  vessels 
(111  you  may 
cu. 

•A'i\  into  tlu! 
the  Ivfvisfd 
0. 

1111. I>, 
Hecrtlary. 


DISTiJUT 


t;ic  District 
iicscnt  hero 
litcii  States, 
iinitnrc.  ami 
if  lorl'oilurc, 

r  the  riiitcd 
■ri'toliivf,  to 
itory,  ami  in 
<Ka,  to  wit, 
.  district  on 
.  sci/cd  tlio 
.iiri'l,  luiats, 
to  the  said 
aiiscs  ; 

il  within  the 
ctiiiii  VXii)  ul' 

<1  were  true. 

Hid   that   liy 

aM's  niadii 

u;  a  Ncsscl 

liccainc  anil 

Inner  is  now 


I  his  lioiior- 
tho    hflort!- 


mentioned  and  dcscrihcd  .schonucr  or  vessel  may  he  cited  in  ;;eneral  and  sjieoial  to 
answer  flie  preniities,  and  all  due  proccedinsis  lieint;  hail,  that  the  said  schooner  or 
vessid.  her  tackle.  U})]>arel,  bouts,  cargo,  and  furniture  nniy,  lor  the  cause  ."irorcsaid, 
and  others  apjtcarinu;,  he  condemned  1>y  the  deiinite  sentence  and  decree  of  thishon- 
oraldc  Court,  as  I'urrcitiil  to  the  use  of  the  said  Cniteil  States,  accoi'dinj;  to  the  form 
of  till!  stutnle  of  the  said  I'niied  States  in  such  eases  made  and  i)ro\  ided. 

(.•^i^iied)  M.  D.  B.U.I. . 

I'liilid  .S7((/c,s  lHnhicI  Aliijriicii  for  the  Dixliiil  of  Alaska. 

AxNi.-\"  C. 

Tho  following;  tahle  shows  the  names  of  the  IJritish  sea'ing  ves,sels  seized  or 
warned  l>y  United  States  revenue  cruisers,  IH.StJ-ISlti),  and  the  ai>|iroximate  distance 
from  land  when  seized.  The  distauci's  assijiiied  in  the  I'ases  of  the  ('arnleiin.  Tlinrii- 
/()H,  and  Onward  are  on  the  authority  of  United  States  Naval  Commander  AUhcy. 
(See  Fiftieth  (Joiii^ress,  second  session,  ."^enate  IC.xecutive  Document  No.  !<!(«.  iti>. 
20,  30,  U).)  The  distanct's  assigned  in  the  I'ases  of  tho  Amid  JUrk.  II'.  P.  Sajindnl, 
Dolphin,  and  (.'nur  are  on  the  authority  of  Cajitain  Shei)ard,  U.  S.  K'.  -M.  (Hhic  Hook, 
rniteil  States,  No.  2,  IXiJO,  jip.  SiO-82.     See  Appendix,  \'ol.  Ill): 


Xaim^  of  vi's.sel. 


Date  of 
Hi'izurc. 


Uiiiti'il  StatcB 


A])pmxiniati'  ili.stancp  from  lanil  wlicn  spizcil.    vessel  iiiakiii^ 

seizmi  . 


Cainl.-iia .Viifi.  l,1^8^. 

TliiirntDii Auu.  l.lSKli 

Oinvaril Any.  •^,\m> 

Favourite Aii".  2.  I(j80| 


Ainia  Heck .fulv    2,18S7 

W.  I'.Saywanl .IiilV    9. 1«.'<7 

Dnlpliiii lulv  12,l>iH7 

CiMce .ImIv  17,  1SS7 

AllMil  Ailaiiis Aug.  Ill,  1H.'<7 

Ada Aug.  'J.'i.  1^ 

Triiimiili All);.    4,  1SH7 

Jnaiiita .lulv  :il,  IHHI)  ,  mi  iiiilin 

ratlilhiilir   .|il!\  •-'ll,  lnMI    r.iiniilc.^ 

Tilum|ili illll\    II   Ih8I) 


7.1  mill  3 

70  mill's 

11. 'i  iiiilcs 

Warned  by  Ciir.vin  in  Hlioiit  same  pDsiiioii  as 
Onward." 

Oii  mill  < 

5'.l  miles 

4(1  milis 

110  miles 

112  miles 

If*inile.s 

Warned  Itv  Uiisli  not  to  enter  liiri'j;  Sea. 


CiirMiii. 
Corwln. 
Corwin. 


Kiish. 
Kii.sli. 
Itl.sll. 
i;iisli. 
Kiifth. 
Itoar. 


Ordered  out  of  lierini;  Sea  liy  Uush,     (!)  A» 
to  iiosilion  wlieii  warned. 

lllaik  Diamond ,Iul\  II.IBW    M,')  miles 

l.ilv .ViiJ.    (LkHi    tiilmiles 

Ariel ,'l»ly  ''l'-  ""'''     Ordered  out  of  Heriiiiu'Sea  liv  liiisli. 

Kate .\u({.  111.  18SII   Ditto '. 

.Mlllliie lulv   i.'),  ISS'I     tl.i  miles 

t'alhllmler <  Miir.  27,  l«Uii    Sel/i  il  in  Ncali  I'.ay  (') 


l:ush. 
Jiiisb. 


illlsll. 

Itusli. 


Uu.<li. 
(.'orniii. 


('i\eali  Ilii\  Is  in  tlie  Hlalo  of  \Vasliinj;ton,  and  tlio  I'ulhjiudir  was  seized  tluue  ou  eliarues  made 
Hgilllisl  her  ill  the  llerlllit  .^e  I  ia  tlh' |ii'evi:)ii.s  year.     .Slie  w  i .' rile  ised  two  days  later. 

And  wlu'i'cas  the  (li»\  ciiiiiu'iit  of  Her  IWitaiiiiic  Majesty  did  ask  tlie 
said  .Vihitiatois  to  liiid  the  said  facts  as  set  fortli  in  the  saitl  state- 
iiHiil.  and  wliereas  the  .\i;iiit  and  Conii.'^el  for  tiie  I'liited  States  (lov- 
ernnient  therenpnn  In  oiir  ineseiice  infornied  iis  tli;it  the  .said  statement 
of  facts  was  sustained  Ity  the  e\  iileiife.  and  that  they  iiad  ai^reed  witli 
the  .\geiit  and  <'oniis(>l  for  Her  liritannic  Majesty  that  We,  the  Ailii- 
trator.s,  if  we  shtuild  tliiiilv  iit  so  to  do,  niij^lit  tind  the  said  stateiiieiit  of 
facts  to  be  true. 

Now,  We,  the  said  .Vihitrators,  do  nnaniinously  lind  the  facts  as  set 
forth  111  the  said  statement  to  be  true. 

And  wliereas  eiudi  and  every  (Hiestion  wliich  has  been  eonsitb'red  by 
tlie  Tribunal  has  been  detennincd  by  a  majority  of  all  the  .Vrbitrator.s; 


84 


AWARD    AND    DKCLAHATIONS. 


Xow,  Wo,  P>iiroii  (Ic  C'oiuci'l,  Lord  Iliiniu'ii,  :\Ir.  Justico  Harlan,  Sir 
.John  Tli()iiii»s<)n.  Si'iKitor  Moiji'Ui,  the  Miinitiis  Viscoiiti  Veiiosta,  iiiul 
Mr.  ( 1  rej^ers  Gram,  tlio  rospect.vo  minorities  not  witlidrawing  their 
votes,  do  (lechue  this  to  be  the  liiial  Decision  and  Award  in  writing  of 
tliis  Tribunal  in  accordance  with  the  Treat};, 

Ma<le  in  duplicate  at  Taris  and  signed  by  us  tlie  fifteenth  day  of 
August,  in  the  year  lSi>3. 

And  We  do  certil'y  this  English  Version  thereof  to  bo  true  and  accurate. 

ALIMI.    I)K    COITROKL. 

John  M.  IIaklan. 
John  T.  M oik; an. 

IlANNEN. 

Jno.  S.  D.  Thompson. 
ViSOONTI  Venosta. 
G.  Gram. 


mm 


nil,  Sir 
a,  and 
f  tlieir 
ting  of 

(lay  of 


!cuvate. 


DHIC  LA. RATIONS 


PSON. 


MADE  BY  THE  TKIIiUNAL  OF  ARBITRATION 

AM)  i!i;iK.iii{i:n 

TO  TIIK  GOVEUNMKN  rs  <^r    rHK    UNITED  STATES  AND   GREAT  BlilTAIN 

FOR  THEIR  CONSIDERATION. 


The  Arbitrators  declare  that  the  concurreut  Kegnlations,  as  deter- 
mined upon  by  tlie  Tribunal  of  Arbitration,  by  virtue  of  Article  VITof 
the  Treaty  of  the  L'Otli  of  Felnuary,  18!>2,  bein<;'  apjilicalile  to  the  high 
sea  only,  should,  in  tlieir  opinion,  besuppleinentod  by  otlier  liegulations 
applicable  within  the  limits  of  the  sovereignty  of  each  of  the  two 
Powers  interested  and  to  be  settled  by  their  coinnion  agreement,  . 


II 

In  view  of  the  critical  c(»ii<litioii  to  which  it  a])i)ears  certain  that  the 
race  of  fur-seals  is  now  reduced  in  cousecjuence  of  circumstances  not 
fully  known,  the  Arbitrators  think  lit  to  recommend  both  (Joveni- 
ments  to  come  to  an  understanding  in  order  to  prohibit  any  killing  of 
fur-seals,  either  on  hind  or  at  .sea,  for  a  period  of  two  or  three  years, 
or  at  least  one  year,  subject  to  such  exceptions  as  the  twoGovernment.s 
might  think  proper  to  admit  of. 

Such  a  measure  might  be  recurred  to  at  occasional  intervals  if  found 
beueticial. 

IH 

The  Arbitrators  declare,  moreover,  that,  in  their  opinion,  the  carrying 
out  of  the  Regulations  determined  upon  by  the  Tribunal  of  Arbitration 
should  be  assured  by  a  system  of  sti{)ii!ations  and  measures,  to  be 
enacted  by  the  two  Powers,  and  tliat  tlie  Tribunal  must,  in  conse- 

85 


Sg 


AWARD    AND    DECLAUATIONS. 


(inciK'O,  leave  it  to  tl.e  tw(.  Pc"'--  to  .Icri.lc  upon  the  means  for  giving 
elTect  to  (lie  Rej> illations  dctei  d  upon  by  it. 

We  do  certify  tliis  Kn-lish  ve    .on  to  be  line  and  aceurate,  and  have 
signed  the  same  at  Paris  this  ir)th  day  of  Aignst,  1S!»;{. 

AM' II  DK  CoriMiKL. 
,1()11N    M.  IlAllLAN. 

J  (ipprore  Dcchtrations  I  and   III 

llANNKN. 

J  aupwce  Did  iratidus  [and  III 

,IN().  S.  1).  TllOMl'SON. 
.loiiN  T.  MOIJGAN. 
VlSCONTl    VENoSTA. 
C   (iUAM. 


BEIIINO  SKA  TlilliUNAL  01'  AIII'.ITIiATION. 


o  V I  NT  j;  ()  isr 


OK 


MR.  JUSTICK  HARLAN 


AT  Till-; 


COxNFKRKNCi:  IN   PARIS 

OF  Tin; 

RKRIXr,  SKA  TRIMIJMAL   OK   ARI5ITKATION,  CONSTITIJ  IKl)    HY  Tllli 

TKEATV  OF  I'KliKrAi; V  2!t,    W.VJ,   MHTWKKN   UKU   lUaiANMU 

MA.IKSTY  AND  TilK  UNirKI)  STATKS  OF  AMKK'IC  \,  AND 

COMl'OSKD    OF    THK    FOI>l,o\VI\(}    MKMIJFIiS: 

BARON  DE  COURCEL, 
Benalnr  niul  A inha.mnln,-  of  Franci;  Presi.h'nt  nf  the  Tiilmiiali 

THE   RIGHT   HONORABLE   LORD   HANNEN, 
Of  Crent  Jtrilain,- 

THE    HONORABLE    SIR    JOHN    THOMP'ON, 
JIhiister  o/.J u.sliir  and  Alltn-)irij  <!.  nrral  nf  raiuula; 

MR.  JUSTICE   HARLAN, 

A  Justice  nfthe  tiiificiiie  Cmirt  cf  t/ir  Vnitcl  .•lat.n, 

SENATOR   MORGAN, 

A  Hciator  i.f  the  Unital  .^tnles; 

MARQUIS  EMILIO  VISCONTI   VENOSTA, 

Fnrvier  }f!:,istrrn/  rnreifjn  .l/air.i,  aud  S.iiufnr  nfthe  hltvi'lmii  ,./  ll,Uy, 

And  HIS  EXCELLENCY  GREGERS  GRAM, 

Afi 'litter  of  Stale  of  Xunuuij, 


WASH!  'OTOX    I).  (J.; 

GOVEKNMKNT    IMllNTlNd   OI'FIOE. 
1SU3. 


TAIU.K    OF    (M)NTKNTS. 


I'Airr  r. 

TIIK  .11  HISim  Tl(»\  W  Tin:  TltllilWI,  (H    A1II!HIMTI(»\. 

1.  luMMi.rks  11,  supiKHl  of  motion  (liMt  Tril.„MM,l  (iisl  .i..t..nni.u.  its  .•o„UM.(..,„.y 

or  powers  iiiidcr  the  Tiviity  ill  iv.-,|M.,t  to  c.it.'iiii  in.'ittcis 5 

2.  Ui)on  111,.  ,|ncsfioi.  of  lii,.  ,., ,H...,r,v  ..f  (Im.  Tiilmii.l  to  pivMril...  iv-iil,.- 

tioi.s.ov.M'i,,;,.   Ihowul.i.sof  H,..  North    I'anii,.   (.,■.„„,  .nol    wl,i,l,  u"!,,,!,! 
l»i()liil)il  j)('];iM;i,;  ,s,,aliiin('iitii.'lv 

(> 

I'Aitr  ir. 

TIIK  MERITS  OF   TIIK    VAKIOI  S  IJI  KSTIOVS   S.  It.>,n  Ti:i»  TO   TIIK    TKimMI,   I  OK  OKTI  U 

MIVATIO.V. 

1.  ''"'"'■nil  Ntatrmr,,t..f  til.,  flirts  out. ,!■  wii, ,1,  tin- |,rr>rntr,,nl,.. v,.,>y  1.1  w,.,.,, 

tlio  two  tiiition.s  arose,  aii.l  tli.'  histoiy  of  ii„ :;otiations  ivsult  in-  i„  tJic 

Troa ty  of  Feliiiiary  29,  ISill' 

-'.  Jiuis.Ii.tion  ami  n<vl,ts  asserted  aii.lex,  ivise.l  hy  Russia  in  lierii,.;-  Sea,  and 
ill  ivspeet  to  tliesoal  fisheries  in  that  sea,  ],yUn-  to  the  cession  of  1^7  of 
Alaska  lo  the  Tnited  Stales.  Kliert  of  t!„.  Tn-afy  coiKiiided  in  lsr> 
liotween  Itnssia  and  (Jreat  Uritain.  I'lie  rij;h(.  (jiat  |,ass,-d  to  the.  I'nited 
States  l.y  t.Iic  Treat y  of  Cession  of  l<^(i7 r^ 

:i.  Tho  ri-ht.  of  proiu^rty  assorted  hy   the  lluiied  Slates  in  tho  I'ril)i].d-  herd  .d' 

seals,  and  its  ri-lit,  whether  as  owii<.r  of  the  limj,  or  simply  as  owm^r  of 

the  fur-seal  indiisfry  011  the  I'ribihd'  Islands,  to  proteet  the  >eals  a-ainst 

pelajiie  sealinfr U^ 

I.  ('oiieiiirent  re<nil;itioiiH ,,,,- 

"  z(lu 

3 


[After  tUu  ar^iiiiii'iit.^  of  couiisul  wt.To  coikiIikIi^iI,  tlic  TiilHiiiivl  of  AiMtiMtimi  went 
iiilo  ( 'oiifcrciicc  ti>  i'oiisii|<>i'  iiiiil  ilrti'i'iniMc  t  lie  \  .nioiis  iii.ii  trrs  miiIhiiII  («'>l  li>  it.  All 
Mil'  (|ii('.sliiiiis  (lisi-iissi'il  wi'ic  fSMiiiiiiiil  Mini  I'lilly  cuiisiiK  i.  il  1).\  tin-  A  i  Uilratiirs,  mid 
ill  iinlcr  lli;it  tiii'v  iiii,;lit  liiivc  iin  (i|i]i  ni  unity  In  put  iipDii  rrr.iid  in  liic  fnnii  nt' 
wiit  li'ii  ()|)iiiioiis  (H'  tlii'V  s  p  (1  '-^iri  il ),  tlie  vitnvs  cxin.'  ■■.  il  l.v  I  liciii  in  ronl'i  riiicr,  tin? 
'riiluiiiiil,  ;i(-  tliii  cjosi^  of  il8  iliililit'r,ilii)iis,  ;iili)i)ti)il  ami  niiiliD.lliiil  in  the  rrotorol  of 
Aiii;iist  II,  lSt:i,  till'  t'olliiwini;  ^(^sllllltil)M : 

"Tho  ri^llit  is  resL'iVfil  In  cii'li  Arliilratiu'  to  lilr  with  tin'  siTiitiii>  ni  I  liis  I  riliiiinil, 
at  any  tiiiio  a/tor  the  iKljoiiniiinMil,  iiii.l  hitl'm  '  Iho  lir^l  d.iy  ol' January,  IS',}),  an 
o|)iiiion  or  o))iiiioiis  upon  tiie  i|uestioiis  or  any  of  thiuii  siilniiiltiMl  for  ili'liTiiiiiiatioii, 
anil  siiuh  opininii  or  iipiiiioiis  sliail  lie  re/anl'il  as  an  aiiiie\  to  (iiis  ri'iituriil." 

Tiie,  opiijiiuis  liclow  eiiilii)  ly,  sulistaiif i;illy,  wliat  wis  saiil  mnlly  in  eonl'iTi'iico  by 
Mr.  .Iiistioo  ILirlan  iiiioii  the  iiuo.stious  or  iiial  li-rs  allmlei!  to  iii  tli'isu  ojiinioiis.] 


PAK  r  T. 

THE  JURlvSDICTION  OF  Tillv  TUll!L\.\l  OF    \Ui:iTK\TI()\. 

1. 

Ri'::TiAKK!ii  i:v  iiii  ppokt  oi'  ;u«»'rr4».\  riiir  iiii:  'ritiiei'.\  ti,  i'ik.xt 
iiK  rr':K.fii.Mi:  utm  tiofiPiOTK.X'v  oet  iM>it  B':fi.s,  i.\i>i:it  tiiic 
Tiei'MTV,  ty  UKfiPMiv/T  TO  c'i!:ic'r.vi.\  ti  ii' mtM. 

(These  remarks  were  made  at  the  first  mortiii^'of  the  Arbitrators  afti'r  counsel  had 
concluded  their  argunieut.s.) 

Mr.  L'iiii:^iDENT:  It  has  bt^oii  siij^'^'csled  that  the  .Vrbitrators  have  a 
liill  iutei'cliaiiyo  of  v'v.'ws  toiichiii<>'  tlie  (iiieslioiis  siibiiiitted  by  tlie 
treaty  lor  dctei'iuiniit ion  before  any  Ibrnial  volf  is  taken.  1  entirely 
ap])rov'e  this  sug{>;estioii.  We  oii,o|it  to  have  the  beiielit  of  siicli  an  in- 
terehange  of  view.s  before  plaeing  npon  record  the  eonehisioiis  we  have 
respeetivcly  reaelted. 

But,  in  uiy  judgment,  our  liist  duly  is  to  dt'terndne  tlie  eoniiieteney 
of  tlds  Tribunal,  under  the  treaty,  to  dc  il  with  the  various  inalteis  sub- 
iiiitted  to  us  by  the  two  governnieuts.  J  move,  thcrclbic.  that  tlie 
Tribunal,  before  entering  upon  the  cousidcratioii  of  these  nuitters 
upon  their  merits,  detennine  its  conipeteney,  so  I'ar  tis  it  may  be  in- 
volved in  the  following  questions: 

I.  Is  it  eonipetent,  under  the  treaty,  for  this  Tribunal  to  preseribe 
regulations  applieable  to  sueh  parts  of  the  North  PaeilicOeean,  outside 


IMAGE  EVALUATION 
TEST  TARGET  (MT-S) 


V.ji 


1.0 


I.I 


If  lis 


M 

12.2 

M 

1.8 


1.25 

1.4    III  1.6 

^ 6"     

^ 

V 


m 


%^  w   ^ 


Hiotographic 

Sdences 

Corporation 


4. 


t 


^' 


\ 


<x 


[V 


€>. 


^ 


^^  ^-1 


c> 


23  WEST  MAIN  ;i,Vs£ET 

WEBSTER,  N.Y.  14580 

(716)  872-4S03 


'4^ 


i/.A 


'g 


^ 


6 


3! 


of  tliojiirisdictional  limits  of  the  two  fjovorniuoiits,  as  are  traversed  hy 
till!  seals  fie(|ueiitiiij;' tlie  riil)iIol' Islands,  if,  upon  Jlie  lacts,  rej^ula- 
tionsof  that  eliaracfer  are  necu'ssary  lor  tlu^  [Moper  |)i-oteetion  and  pres- 
ervation of  (lie  fur  st'al  in,  or  iialiitnaliy  resortin;^'  to,  Heriny  Sea? 

2.  Is  it  eonipetent,  under  the  treaty,  for  this  Triluiiial  to  i)res<'ril)e 
re^nlations  foi-  a  closed  season  eoverinj;'  such  waters  of  liotli  Iterinj; 
tSea  and  tiie  North  racille  <  )cean,  outside  the  jnrisdietional  limits  of  the 
two  countries,  as  are  iialtiliially  traversed  hy  tiiese  fur  seals,  and 
einhracin:;'  the  inontlis  ilurin;;'  wiiicii  fur  seal  may  he  taken  in  the  open 
seas,  and  dnriiiin'  widcii  closed  season  all  huntiiij;'  of  said  seals  in  su«di 
waters  shall  be  forbiddcMi,  pros  ided  the  facts  sliow  I  hat  rej;uIations  (d" 
that  character  are  necessary  for  the  |>roper  protection  and  preservation 
()flhe  far  seal  in,  orhaltituaJiy  resort  in. 1;  to,  lierinj;'  Sea? 

We  lind  that  counsel  dilfer  widely  as  to  the  powers  of  the  Tribunal 
touehin<>'  tiie  matters  referred  to  in  tins  motion. 

The  IJritish  ( !o\ crnment,  in  its  ('.iiintei- Case,  and  its  «'ouns<'l  in  their 
l)riuted  ari^ument,  «iuestiiin  the  autliorily  of  the  Tribunal,  under  the 
treaty,  to  prescribe  re,i;uliitions  applicaltle  to  llu-  North  l\u'ili»*  Ocean, 
even  if  it  be  found  tiial  regulations  coveriii;:;'  a  part  ()f  that  ocean  are 
absolutely  essential  (o  liie  |)ropcr  protection  and  preservation  of  these 
fur  seals.  And  that  (i(;\ crnment  and  its  learned  counsel,  at  whose 
head  is  the  Allorney-Cu'ueral  of  (Jreat  IJritaiii,  wiiih'  not  expressly 
dispiilinj;'  our  -power  to  establish  a  zcuie  around  the  I'ribilof  Islands 
within  widch  ])ela.iiic  sealiui;'  may  be  entirely  juohibited  at  all  seasons, 
also  deny  that  this  Tiibumd  has  any  authoiity  to  prescribe  re<;ulations 
which,  by  their  necessary  operation,  will  ])Ut  an  end  altoj;ether  to  the 
business  of  huntiny:  these  seals  in  the  open  waters  of  Uering  Sea  out- 
sid(^  of  such  zone  or  in  the  Noitli  Pacilic  Ocean. 

The  linited  States  contends  tliat  the  treaty  requires  at  our  hands 
whatever  re;'ulations  an',  nrecasarif  for  the  proper  pn)tei'tiou  ami  pi-es- 
ervation  of  theses  fur  seals  when  foiiiid  outside  the  Jurisdictional  linnts 
of  the  respective  (ioverinueid.s,  either  in  IJeriu};' Sea  or  in  the  North 
I'acilie  Ocean  ;  (hat  (lie  power  to  preseiibe  such  rej^ulations  is  expressly 
conferred;  and  that  a.  refusal  to  exert  such  power,  if  its  exeicise  be 
found,  under  the  evi<h'nce,  necessary  to  the  preser\ati(Ui  of  this  race, 
will  be  a  refusal  to  execute  the  treaty,  ami,  therefore,  would  defeat  (uie 
of  its  ])rincipal  objecis. 

I'\»r  one.  I  Mish.  to  know,  before  any  intercdiaufi'c  of  views  occurs 
between  Arbitrators  in  lesjicct  to  the  merits  of  the  several  matters  sub 


lAMTSt'd  1)^' 

s,  n'oulji- 
aiid  pres- 

l)r('s«'rilM' 
til  licriii^ 
nits  of  till' 
si'iiis.  iind 

I  tilt!  (>)M'II 

Is  in  siM-li 

iliitions  of 
I'scivalion 

>  Trihunal 

(>1  in  tlit'ir 

undi'r  tli«' 

ilic  Oct'iin, 

ot'Ciin  are 

)n  (tC  these 

at  wliose 

expressly 

of  islands 

II  s(>iisons, 
'jnulations 
her  to  the 

y  .Sea  out- 

our  hands 
and  pres. 
nial  limits 
,he  North 
expressly 
xercise  bo 
til  is  raee, 
Icfeat  one 

\vs  oceurs 
I  tiers  sub 


milted,  what  the  Trilmnal  deems  its  powers  to  be  in  re;;iird  to  tlie 
subjeets  we  are  here  to  eonsider.  Xo  Arbitiator  should  be  put  in  su<'h 
])osition  that  it  can  be  said  that  his  views  as  t«>  the  eompeteuey  of 
tli(^  Tribunal  were  withheld  until  the  majo;'ityhad  expressed  opinituisin 
respei't  as  well  to  the  merits  of  the  several  (puvstioiis  of  rij>ht  arisinj; 
under  the  treaty,  as  to  the  ueiu'ssity  of  r«';;nlatioiis  for  the  proper 
protection  and  preservation  of  these  seals. 

If,  however,  it  be  the  pleasure  of  Ariiitrators  to  interehan^je  views 
upon  the  tneiitsof  all  the;  (piestions  before  us,  not  involving;'  the  jnrisdie,- 
tion  of  the  Trilmnal,  before  any  vote  is  taKen,  and  if  they  oi«le,r  my 
motion  to  lie  upon  the  tal)le  for  tlici  present,  I  will  artpiiesre,  if  it  be 
irnU'i'stood  that  the  lirst  reenrded  vol'  shall  be  upon  the  iioints  em- 
bodied in  that  motion. 

Let  me  say  in  this  (ioiinei^tion  that,  the  arf^uinents  liavin;^  been  eon- 
eluded,  I  am  prepared  to  iinlieate  to  any  Arbitrator,  win  never  desired 
by  him,  the  ('.oneliisioii  reached  b,\  me  toiu'liiii;;- any  question  before  us, 
whether  rtdatin;;' to  the  uu'.rits  o*'  the  ease  or  to  the  competene.y  of  tlit^ 
trihiinal.  Any  such  expri'ssion  ol"  views  must,  of  course,  bo  subject  to 
the  possibility  of  their  l)ein<j^  cliaii<;'ed  ov  modilied  as  tli(>.  result  of  oiir 
disciissions  in  c(Uiferen<'.e.  If  ther*',  are  other  ijuestioiis  of  tlie  Juris- 
diction of  this  Tribunal  besides  those  named  by  nui  in  respect  to  which 
any  Arbitrator  desii-es  action  by  the  Tribunal  before  eoininj;'  t()  matters 
that  must  be  covered  by  ;he  award,  I  will  coiiperate  with  him  in 
luivinji;  such  action,  and  this  without  reference  to  the  iiatuie  of  the 
(pujstion.  If  any  Aibitrator  wishes  to  know,  in  advance,  what  the 
Tribunal  thinks  as  to  its  comi»elency  or  powers,  I  shall  deem  it  my  duty, 
so  far  as  my  action  can  have  ell'ect,  to  put  his  mind  at  rest  in  respect 
to  that  matter. 

JUit,  Afr.  President,  I  can  not  stop  hei(^  without  ruii;iin^  the  risk  of 
beinjj^  charged  with  concealiii'>- some  things  that  are  on  niy  mind  and 
which  Arbitrators  are  entitled  to  know  before  acting  upon  this  motion. 
My  eonvielion  is  absolute  that  the  treaty  as  interpretiul  by  the  British 
(Joverninent  and  its  counsel,  in  respect  to  the  powers  of  the  Tribunal, 
is  not  the  treaty  I  was  asked  to  aid  in  executing.  It  is  not  the  treaty 
Great  Uritain  would  have  asked  the  United  Stati's  to  sign.  It  is  not 
the  treaty  which  the  rresi<leiit  of  the  United  States  would  have  ap- 
l»roved.  It  is  not  the  treaty  which  a  single  member  of  the  oenate  of 
the  United  States  woidd  have  sustained  by  his  vol«'.  So  strong  is  my 
conviction  upon  this  subject  that  if  this  Tribunal  does  not  couceive 


8 


\l 


itself  to  have  the  power,  under  the  treaty,  to  preserve  this  raee  o( 
useful  aiiiiniils  so  far  as  that  end  may  he  attained  hy  regulations 
apjdicahle  to  the  \vat«'rsof  both  IJeiinj,'  Sea  and  the  North  racitie  Oeean 
traversed  by  these  seals;  if  it  decides  that  it  ean  not,  for  want  of  power, 
make  re.yulati()ns  of  that  character,  I  would  deem  myself  wantiny;  in 
dtity  to  both  of  thec(»untries  here  r('i)res(Mited,  if  I  did  not  insist  u]>ou 
an  adjournuicnt  of  this  ( •onfcrencc  for  smdi  reasonable  time  as  would 
}j[ive  the  respeclive  (lovernnients  an  opportunity  to  ne<>otiat<'  for  a 
supi)l(M.i('ntary  <'onv('n)ion  invest iii<>'  tiie  Tribunal  with  full  i)owei'  to 
arcoinplish  tlie  object  which,  in  every  form  of  lan;,nia;i'e,  they  hav«' 
expressed  an  earnest  desire  U>  aeeoniplish,  namely,  the  jueservation  of 
this  race  of  fur  seals,  without  reference  to  considerations  of  proiit  or 
advanta^'<;  to  any  uatitui  or  to  the  individuals  of  any  nation. 

I  Ix'jx  you  to  understand  that  I  do  not  ask  the  Tribunal  to  say  at  this 
time  what  regulati«uis  are  necessary  to  secure  tiie  preservation  of  these 
animals.  If,  upon  examination  of  the  evidence,  it  be  found  that  regula 
tions  which  in  terms  or  by  necessary  operation  i)rohibit  or  put  an  end 
altoj;ethei'  to  pelaf^ic  sealing'  both  in  Bering  Sea  an<l  in  the  North  Tacifii^ 
Ocean  ai'e  not  necessary  for  the  ]>roi)er  ])rotection  and  preservation  of 
this  race  of  aniuials,  both  countries  must,  in  good  faith,  abide  by  that 
determination.  I  only  ask  that  you  declare  in  some  form  ami  in  advanc<' 
whether  you  have  the  power  under  the  treaty  to  ]uescril)e  reguhitious 
of  the  character  indicated  by  uu^,  if  the  facts  show  them  to  be  necessary 
ill  order  to  save  this  race  fr<»m  externn'nation.  J  am  unwilling  to  reundn 
silent  ui)ou  this  (juestioii  of  tluM-ompetency  of  the  Tribunal  until  I  shall 
have  ascertained  what  your  views  are  on  the  several  nmtters  submitted 
f«n'  determiinition,  ami  then  bring  uj),  or  forbear  to  bring  up,  this  ques- 
tion of  Jurisdiction,  as  I  may  agree  or  disagree  witii  the  views  you 
express  on  the  merits. 


('i>o:v  Tiiii;  QirRATioN  OF  TIIE  <'o.Tii*r:'rEivcv  of  tiir  Ti^iBriVAr 
TO  i>kI':m('Kii(ic  i{i<:4iiiri<%Tioi\N  t'Ot  i<:iiii\«  tiik  \VAri-:KM  of  tiir 
NOKTii  pAC'int;  o«'i':.%:v,A.'\i>  WHICH  tvovrupnoiiiniT  pki.avic 

NKAI.IiVfi  ICNTIIIEiiV. 

('i'bo  Tribiiujil  having  i>n  !i  «ii1>so(]aont  day  of  its  sessions  voteil  to  consider  the 
above  motion,  tho  roniarks  below  were  nmdo  in  its  snpitDrt.) 

This  Tribunal  has  been  constituted  in  order  that  there  may  be  an 
amicable  settlement,  by  arbitration,  of  certain  questions  between  the 


9 


race  ol 
^iihitioim 
lit'  0('4'iin 
)f  jxtwer, 
lilting;  in 
list  ii])<)ii 
as  would 
»t<'  for  a 
injwer  to 
icy  liav«' 
vatioii  of 
proiit  or 

ay  at  this 

I  of  tllC'SC 

it  irgnla 

it  an  end 

til  ratific 

•vati»)n  of 

r  by  that 

advance 

f:iiIations 

letH'ssary 

(>  remain 

11  I  shall 

ubniittt'd 

his  ques 

lews  you 


IBVlVAIi 
OF  TIIK 

iiHider  the 

ay  be  an 
kveen  the 


(toverninent  of  tlifi  United  Stat«'s  of  America  and  the  Government  of 
Her  Britannic  Majesty,  which  are  described,  generally,  in  Aiticle  I  of 
the  treaty  of  Kebinary  -'•),  ISIL*,*  as  (|ncstion.s  '•  concerninfj:  the  jurisdii;- 


TREATY  BETWEEN  THE  UNITED  STATES  OF  AMEBICA  AND  GREAT  BRITAIN  CON- 
CLUDED FEBRUARY  29,  1892. 

'I'lio  United  Stiitps  of  Ann  riia  uinl  \\>r  .M:i.;(-i(y  lln^  (/ikcii  of  tlm  United  Kinploiii 
ofliriNit  lirituin  iiinl  lif.lund,  lii-iii!;  il(;->ii°(iiis  to  proviilo  for  an  uiiiicaltle.st^ttli'nKMitof 
tile  i|iic.sUuiiN  wliirli  Iium;  iirisi'ii  Iii'Iwitii  tlicii'  i'i'N|i<>('t i\ c  (iitvfi'iinu'iit.s  ritiicci iiiii); 
lln'  ,jurm<lic.tion;il  ii;;lns  oft  lie  I'liitr.l  Sliitus  its  iin;  wiiti-r.s  of  llcriuij'N  Sea,  ami  I'oll- 
rt'rniiij;  also  the  |iicsri'vat  ion  of  lln)  liir  sr  il  ii,  or  lial-itnally  resorting;  to,  tin-  mtitl 
Kt'a,  and  tlic  lights  of  the  cili/ius  and  .siilijcctM  of  fillicr  country  a.s  n-jfardH  tlio 
takiij<;  tliu  fnr-.sral  in,  or  liubitnally  resorlini;  to,  tho  Haiti  waters,  liavc  resolved  to 
snliinit  to  arbitral  i<ni  tlio  (|ni>stions  involved,  and  to  tlie  end  4d'  eoiii'lii(liii<;a  eoiivoii- 
( ion  for  that  purpo-ie  iiave  ap]MiiiiliMl  as  tiieii'  lesiieelive  I'lini potent iaries  : 

'I'he  I'resitleiit  of  the  I'nitod  Si.iles  of  Aiiieriea,  ,laiii(!s  (i.  Itlaine,  Secretary  «>f  ."^tato 
of  the  Knifed  Statis;  and 

Her  Majesty  tlu;  </iieen  of  the  IJniteil  Kiu'^doui  of  (Jroat  Itritain  and  Jrdand,  Sir 
.liilian  raiin<;e,fot<!,  (i.  c.  .M.  (i.,  K.  c.  is.,  Iler  Majesty's  Knvuy  lOxtraonlinarj  uuil 
Minister  I'leJiil)otentiary  to  the  1,'nitcd  Slates; 

Who,  after  havin;^  connnnnic  ited  to  each  oilier  their  rcRpectiv<>  full  ])o\vi'rs  which 
were  found  to  he  in  due  and  i)roper  form,  have  aj^rced  to  and  coiidndi'd  the  follow- 
inj;  articles: 

Ai:tu;i,i-;  I.  The  (|iie>tions  which  have  arisen  between  the  Governnient  of  the 
I'nited  States  and  the  (ioveriimeiit  of  Iler  Hiitannie  Ma.jes;  •  concerning  tip'  jnris- 
dictional  rights  of  the  United  .siales  in  the  waters  of  Iterinjf  Sea,  and  conet^rnin^ 
also  the  j)reservation  of  tiio  I'nr-seal  in,  or  habitually  resortint;  to,  the  said  se.'i,  and 
the  rights  of  the  eili/.ens  and  subjects  of  either  country  as  re.;;ards  the  taking  of  fnr- 
sciil  in,  orbabitnally  resoitinu  to,  the  saitl  w;ilers,  shall  be  submitted  to  a  tribnmil 
of  arbitration,  to  lie  eoinposcil  of  se\en  aibitrators,  who  shall  be  appoii:ted  in  the 
following  manner,  that  is  to  say:  Two  shall  be  named  by  the  Tresident  of  the 
I'nittMl  Stales;  two  shall  In- named  by  her  Kritannie  Majesty,  His  lOxcelleney  the 
I'resident  of  the  l''reneh  liejiuldic  shall  be  jointly  re(iuested  by  the  high  contracting 
jtarties  to  name  (me;  His  Maji'sly,  the  King  of  Italy,  shall  be  so  requested  to  name 
one;  and  His  Majesty,  the  King  of  .Swe.leii  anil  Norway,  shall  be  reiinestod  to  name 
one.  The  seven  arbitrators  to  lie  so  n.-uiied  sluill  be  jurists  of  distinguished  re])nta- 
tion  in  their  respective  countries;  and  the  selecting  jiowers  sliall  be  recjnested  to 
choose,  if  possible,  jurists  wh(»  are  ai'i|uainted  with  tiic  I'.nglisli  langnagp. 

In  case  of  death,  absence,  or  im-aiiacity  to  serve  of  .-my  or  either  of  the  said 
arbitrators,  or  in  the  event  o(  any  or  either  of  tlie  said  arbitrators  omitting  or 
declining  or  ceasing  to  .act  as  such,  the  Tresidenl  of  the  I'niled  Slates,  or  Her  Itiitan- 
nic  Majesty,  or  His  Kxcellcncv,  the  rrcsideni  of  the  Freiu'h  Keimblic,  or  HisM.'ijest 


ijesty 


the  King  of  Italy,  or  His  Majesty,  tin;  King  of  Sweden  and  Norway,  as  thec.isemny 
be,  shall  name,  or  shall  be  re(|uested  to  name  forthwith  another  porHou  to  uct  its 


J! 


10 

tloiial  rijilits  of  the  Ilnitotl  States  in  the  waters  of  lieriiiK  Sea,  and 
voiieernin<j;  also  the,  pieservatiou  of  the  far  seal  in,  or  hahitnally  resort 
iug  to,  the  saiti  Sea,  and  the  rights  of  the  eiti/.ens  an<l  subjects  of  either 
eoiintry  as  re^^ards  th(>  takin<i;  of  far  seal  in,  ur  habit nally  resortin^^  to, 
the  said  waters." 

Article  VI  pidvides  that,  "  iti  decidiiij;  the  matters  snbinitted  to  the 
arbitrators,"  crrtain  |>oints,  iivt^  in  nninbcr,  shall  be  siinibitted  to  them, 
in  order  that  their  award  may  embiace  a  distincit  decision  npoii  each 
point.    One  uf  those  points  is  embodied  in  tli<^  followin<>-  qKestion: 

iii'tiiti'iitor  in  (lie  placi-  :iii(1  Hti-ail  of  tlie  arltiliMlnr  i>riM;inally  ii;iini-il  li,\  nim-Ii  Ik-ikI  of 
11  State. 

Ami  ill  tilt'  miMit  of  a  I't'l'iisal  or  oini.sslon  I'or  two  iiiniitlis  at'ter  ifcciiit  of  thojoint 
^«'l|ll(•^l  iVoiii  llic  lli.!;li  Coiitracl  iiiu;  rallies  of  lli.s  l'.\t  clliiiey,  llie  I'lisiileiit  of  tile 
l''ieiieli  Kepiililie.  or  His  Majesty,  t lie  Kiii^' of  Italy,  or  llis  Majesty,  tin;  Kiiijj  of 
Sweden  and  Norway,  to  naiiu!  an  arliilrator,  either  to  till  tlii!  oi'i;;iiial  a|i|ioiiitiiieiit 
or  to  till  a  vaeaney  as  aliove  provided,  IIk'Ii  in  siieli  ease  tlie  app  >inliiieiit  shall  lie 
made  or  the  vaeaney  shall  \h-  lilled  ill  Miii-h  inaniier  aN  tln^  Hii^li  Coiitraetin^'  Parties 
shall  UK'"'*'' 

Aur.  II.  The  arliilralors  -liall  imu't  at  Paris  within  twenty  days  after  the  delivery 
of  tlie  eoiinter  eases  mentioned  ill  Arlii'Ie  i\.  and  sliali  pioeeed  impMilially  and  eare- 
fiilly  tu  exaniiiii)  and  deride  the  <|iii'st  ions  liial  ha\e  heeii  ur  shall  lit;  lai<l  liefore 
them  iiM  herein  jirovided  mi  the  )i,ii'l  of  the  ( iovervmeiits  of  the  I'liiled  State.s  and  Her 
Pritaniiie  .Majesty,  respectively.  All  ijiiest  nins  considered  1>y  the  ti  ihnnal,  iiicliidin<; 
the  linal  deeision,  shall  he  determined  Ity  a  majority  of  all  the  arhitraturs. 

I'^iieh  of  the  Ili^h  ('oiitractiii<r  rallies  shall  also  iiaiiK;  one  jiersoii  toatlcnd  the  tri- 
liiinal  as  ilsa;>cnt  to  represent  it  j^eiierally  in  all  m:iltcr8  connected  with  tho  urhi- 
t  ration. 

.\Kr.  III.  Tlnr  ]irinted  ease  of  each  of  the  two  parties.  accoiii|>anied  by  tlio  tlccu- 
iiientH,  the  ollicial  ciirrespondciH'c,  and  other  e\  ideiicu  on  which  each  relies,  shall  ho 
delivered  in  dnplicaU;  to  each  of  I  he  arid  Ira  tors  ami  to  the  agent  of  the  other  ]iarty 
jiH  soon  as  may  he  after  the  appointment  of  tin;  members  of  the  tribunal,  but  within 
u  period  uut  oxcoediuj^  four  inunlhs  from  the  dutu  of  tliu  exchunj^c  of  tho  rutilicutiouH 
of  this  treaty. 

AltT.  IV.  Within  three  months  after  the  delivery  on  botli  sides  of  the  printed  ease, 
either  party  may,  in  liki- manner  deliver  in  (ln]ilieate  to  eaili  of  the  said  arbitni- 
tiii's,  and  ti>  the  agent  of  the  other  par'y,  a  counter  case,  and  additional  documents, 
idi'it'spondeiice,  and  e\  iihiice  so  inesfu'ed  by  ilie  other  jiaily. 

If,  however,  in  eoiiHei|iienee  of  lln^  dislance  of  the  placi!  froin  which  the  evidence 
to  be  presented  is  to  bt^  jtrociired,  either  parly  shall,  within  thirty  days  after  the 
rceeipt  by  its  agent  of  the  case  of  thedt'.ier  party,  give  notit'e  to  the  other  party 
that  it  requires  additional  time  for  the  delivery  of  such  e«ninlor  case,  doeiimentH, 
eorre.spoudence,  and  evidence,  such  adtlitional  tiim^  so  indieated,  but  not  exceeding 
sixty  days  beyond  tho  three  months  in  this  article  jirovided,  shall  be  allowe«l. 

If,  ill  the  eas<t  submitted  to  the  arbitrators,  either  party  shall  ha\«'  spi'cilied  or 
alluded  to  any  report  or  doeunient  in  its  own  exclusive  possession,  without  unnexiiig 


11 


of  thu  Joint 
iilt'iit  of  tlio 
the   Kill?;  of 

l|l|loilltlll<'llt. 

out  sliall  III' 
liiij;  rmlifs 

till'  delivery 
llv  iiiitl  ciirc- 
iaid  licforc 
iti'M  and  llcr 
i1,  iiicliidiiiir 
I'rt. 

I(  lid  tin-  tri- 
ll tliu  iirlii- 

tlio  dcfii- 
icH,  shall  lio 
otlnr  i»ar(.v 
but  within 
atilicutions 

rlntcd  caHo, 
lid  arhitra- 
docnnuMitH, 


"5.  Ifiis  Ww  ITuif(Ml  Stiilos  any  ri,i;1if.  siihI  if  so,  wliiit  n^'lit,  of  protec- 
tion or  |)i'o|MM-ty  ill  the.  t'lir  sciils  trr<|iifntiii;;  tli<^  isluiitls  of  the  I'liitud 
Stales  ill  IJcriiiji'  Sea  wiuMi  siirli  seals  arr  Ibiiiid  outsido  tlic  ttnliiiury 
tliict'iiilh^  limit  ?" 

Article  V'll  is  ill  these  words: 

''If  tin'  ilefei  iiiiiialion  nf  tlie  fore^^oin;;  (|iiestioiis  as  to  tlie  exeliisive 
jiiiisdietioii  of  the  United   States  shall  leave  llie  snlijeet  in  s:ieli  posi 
tinii  thai   the  eoin  in  icnee  of  (iieat    lliitain  is  nceessary  to  the  estab- 
Ijshinenl  of  lvi';;iilation.s  for  tin;  proper  prottM-tion  ami  preservation  of  the 

a  I'liiiy,  surli  |iai'i,v  -ijiall  lif  IhuiikI,  il'  Ihr  otiii'r  partv  lhinlv'4  proper  to  anpl.v  fur  it, 
to  furnish  tint  parly  with  a  'npy  tln'i'Mif;  and  I'illn'i'  parl\  may  •all  upon  tlir  other, 
llii'i>iii:li  I  lie  ai'liitralors,  In  prndine  Ihe  nrii^inals  nr  eeitilied  eopieM  of  any  papers 
aililiK'i'd  as  evideiire.  <;i\  in;',  in  eaeli  i  list  a  nee  ii<>iiro  thiTeid'  w  il  hill  111  illy  days  after 
delixeiy  of  tile  ease  ;  i,nd  I  lie  ol'i<;ilial  or  eopy  HO  rei|lle.sled  shall  lie  delivered  as  800II 
as  may  l>*'i  ioid  williiii  a  peiiod  init  oxeeediii;;  forty  days  after  reetdpt  of  notiee. 

Aim.  \'.  Il  shall  lie  the  duly  of  llieai;eiil  ot' each  parl\,  within  one  iiionlh  after 
the  expiration  of  I  he  time  limited  for  the  delivery  of  I  lie  eonnter  ease  on  hotli  sides, 
to  deliver  ill  diipiii  ale  to  eai  li  of  the  sai<l  arliil  lalois  and  to  the  a<rent  of  the  other 
]iail\  a  pi  iiiied  ar.i;iiiiienl  sho\viii;r  |||t>  jitiiiits  and  i<'l'eri'iii;,r  to  the  evidunee  upon 
which  Ills  (>o\  el  iinienl  relies,  and  either  parly  ma\  also  support  the  same  hefore  the 
ai'liitralors  liy  mill  :ii  ^iiiiirnt  of  eoniise! ;  and  the  ailiili  atot.)  may,  if  they  desiro 
fiirtlni' eliieidaliiiii  with  n';^,'ird  to  any  point,  leijiiire  a  writ  leii  or  printed  stateiiieiit 
or  a  run  men  I,  or  oral  ai';4'uiiieiil  of  loiinsel,  ii)ioii  it ;  I  nit  in  siieli  ease  the  other  party 
shall  lie  entitled  to  reply,  either  orally  or  in  writin^r,  as  the  casi;  may  he. 

Aitr.  \I.  Ill  deiidinii  the  inaltiis  suliniitled  to  the  arhiti'iitors,  it  is  aj^reetl  that 
till'  foUowini;  live  points  shall  lii<  siilimilled  to  them,  in  order  that  their  iiwurd  Mhiill 
eiiilira<-e  a  distinet  decision  upon  each  ol  said  live.  poiiitH,  to  wit: 

1.  What  exilnsive  Jiirisdielion  in  the  sea  now  known  as  the  llerinfr  Sea,  and  what 
exrlimive  rijihts  in  the  seal  lisheiies  I  herein,  did  K'lissia  assert  and  oxureisc  prior  and 
up  to  the  til >f  the  cession  of  Alaska  to  the  I'liiled  Statesf 

:.'.  How  far  were  those  claims  of  Jiirisdiition  as  to  tlics.sal  lislicrie,s  rocognizud  and 
eoueeded  hy  (ireat  Itritainf 

3.  W;i8  the  liody  of  water  now  known  as  tlm  Meriii;^  Sea  inidiided  in  the  phrtoae 
"I'aiilic  ( leeao,"  as  used  in  the  treaty  of  \H'S>  helweeii  (ireat  Itritain  and  liii.ssia; 
and  what  iii;lils,  if  any.  in  llit^  Meiiii;;'  .'>ea  were  held  and  exclusively  exercised  by 
lin.ssia  after  said  treaty  f 

■1.  Did  all  the  ri;'hts  of  Russia  as  to  inrisdicl  ion,  and  as  to  the  seal  tisheries  in 


IJeri 


Sea  east  of  the  water  lioiiiidarv,   in   the  Inatv   lielweeii  the  I'nited  States 


anil  Russia  of  the  30tli  March,  18(J7,  pass  nniiniiaiied  to  the  United  .States  under 
I  hat  treaty? 

.">.  Mas  the  Ignited  States  any  rii^lit.  .'iiid  if  so,  what  ri^lit  of  jirotectioii  or  pro|M'rty 
in  I Ini  fur-seals  freiiuentini";  the  islainls  of  the  I'liited  Slates  iii  IJerin;;  Sea,  wlien 
such  sepals  are  found  outside  the  ordinary  S-niile  liinitf 

Aur.  \'II.  If  the  deti-rininalion  of  the  toi'ey;oiiijj  ()  nest  ions  as  to  the  exclusive 
jurisdiction  uf  the  lluited  States  sUall  I«nv«  the  subject  in  Kuch  position  that  tUo 


"vm 


wm 


II 


12 

fiiisoivl  in,  or  habitually  resorting  to,  the  BiM-iiij?  Soa,  the,  Aibitnitors 
Hhall  then  (IrtiM'iiiiiiu  what  concm-iciit  Ke^ulatioiiH  outside  tiiejurisilic- 
tional  liiiiitH  of  tiie  respective  (iovernincntH  are  ne(;essary  and  over 
what  waters  such  Ue<;iilatioii8  should  extend,  and  to  aid  them  in  that 
determination  the  report  ot'a.Toint  Commission  to  be  appointed  by  the 
respective  (Jovernments  shall  be  laid  before  them,  with  such  orlier  evi- 
dence as  eirJuM'  (rovernmtMit  may  submit.  The  lli^h  <y(Mitrai-iiii<; 
Parties  furthermore  ajjree  to  cooperate  in  securing!;  the  adhesion  of 
otiier  powers  to  sniih  Itcfjulations." 

Article  XIV  dcirlares  that  "tlie  High  ('on tract ing  I'aities  en;;;i};:e  to 
consider  the  result  of  tiie  proceed  in  jjfs  of  tiie  Tribunal  of  Arbitration, 


«'oiii'nrrcnc<i  oCGnMit  Britain  is  ii('<'<vssary  to  tlm  <>.stal)lisIiin*M)i  of  ri'<;iilatiiiiiH  for  tin' 
]ii'o|iiM'  proturtion  iiiiil  ]irrst'rv!itioM  of  the  riii-sfal  in,  or  lialiitiialiy  i't>.siirliii<r  to, 
tlm  M'liii;;  ■St'ii,  tins  arldtratois  hIi„1I  tlnMi  (lolcrniini'  wliat,  <'t»ii(iirr»'nf  ri'Knlations 
oiitsiilc  tlio  juriailit'tioiiitl  limits  oftliu  r*>s])C('tiv(;  (iov<  rnnifiits  arts  nvcfssary,  :iiiil 
over  wliat  waters  sitcli  rn>ru1iitioi)s  hIkuiI*!  o\t<Miil,  ami  lo  aid  thiMii  in  tliiit  dctcrnii- 
iiation,  tilt!  rcjiort  of  ii  .loiiit  ('oniini.tsioii  to  hi-  appoiiittMl  by  tlic  lospi-clivo  Govern- 
ments shall  bo  laid  before  tliem,  with  sueb  other  evid-rnce  iis  cither  Governnsent 
may  submit. 

The  High  Contr,ieting  Parties  furthermore  agree  to  coJipei  ate  in  securing  the  adhe- 
sion of  otlicr  Towers  to  such  regulations. 

Altr.  VIII.  Tile  High  Contracting  I'artie.s  h!i\  iug  found  tlnuuselves  unable  to  agree 
npou  a  reft?renee  whieh  shall  inidude  tiie  question  of  tho  lialiility  of  eaeli  for  the 
injuries  uUogcd  to  have  been  sustained  by  the  otlier,  or  by  its  eitizens,  in  eoiniecf  ioii 
with  the  claims  presented  and  urged  by  it;  and  lieiug  solieitotis  that  (his,siilM)r<linat(i 
question  should  not  interrupt  or  longer  delay  tlie  suiiuiission  and  di'tenninaliun  of 
tli(!  main  ()uestions,  do  agree  that  either  ]>arty  may  submit  to  the  arbitrators  any 
question  of  fact  invcdved  in  said  claims  and  ask  for  a  finding  tlnieon,  the  (lucslioii  of 
the  liability  of  either  Govornniont  upon  the  facts  f(mnd  to  be  the  subjeet  of  furll  <  .• 
negotiatitin. 

.\ilT.  IX.  The  High  Contracting  Tarties  have  agreed  to  ai)point  two  commissioners 
on  the  i)art  of  each  Govornuient  to  make  the  joint  iuvcstigalion  and  report  con(<3m- 
plated  in  the  i)receding  Articl(^  vu,  and  to  inilnde  (he  terms  of  the  said  agree- 
ment in  the  convention,  to  the  end  that  the  joint  and  several  reixirts  and  rei  nm- 
mondations  of  said  commissioners  may  be  in  duo  form  submitted  to  the  arliitralors, 
sliiuild  the  contingency  therefor  arise,  the  said  agretsmeut  is  accordingly  her(!in 
included  as  follows: 

Each  Government  shall  ap])oint  two  conunissionors  to  investigate  conjointly  with 
tho  commissioners  of  the  other  Government  all  the  facts  having  relatiou  to  seal  life 
in  Bering  Sea,  and  the  measures  necessary  for  its  proper  protection  and  preserva- 
tion. 

The  four  commissioners  shall,  so  far  as  they  may  be  able  to  agree,  make  a  joint 
report  to  each  of  the  two  Governments,  and  they  shall  also  report,  either  jointly  or 


18 


hitnitors 
i  Jiirisdic- 
iiiid  over 
111  ill  that 
I'd  by  tin' 
urlior  t'vi- 
iitniriiii^ 
husioii  of 

(Mijjaf^Ci  to 
liittatioii, 

iiiiis  fur  I  lie 

'Sllllillir    tt», 

i'c;;iiliiliiiiis 
csdiiry,  iiiiil 
at  (Iftcrini- 
ive  Uovcni- 
lovorniitc-nt 

igtlic  adho- 

l)lcto  a>;ri'i' 
u'li  for  till' 
'oiUH'i't  ion 
iilioi'iliriato 
iiiniil inn  of 
r.itor.s  any 
i|iU'stioii  of 
of  furl  I  .. 

inissioiiora 

)lt,   COlltclll- 

aid  ajiTce- 
11(1  rn-oiii- 
rhit  I'M  tors, 
^ly  herein 

)infly  with 
to  Bcal  life 
I  proserva- 

1<e  a  joint 
jointly  or 


ns  ii  full,  perfoct,  and  ttiial  settlement  of  all  the  quoHtlonR  referred  to 
the  Arbitrat<»ra." 

Throufflumt  the  whole  of  the  iietjotiiitloiis  rosidtiuff  in  the  treaty, 
tlie  two  (Joverniiioiits,  by  their  ai-creditoil  representatives,  expressed 
an  eainest  desire  for  tlie  proper  protect ioii  and  preservation  of  the  fur 
seals  which  inul  their  bn-ediiifj  {fromids  on  IMibilof  Islands  in  Mering 
Sea,  as  well  as  their  willln<;ness  to  unite  in  the  enfon-enient  ajfainst 
their  respective  citizens  or  subjects  «»f  all  measures  found  necessary  to 
prevent  the  extermination  of  that  race  of  animals.  The  recoril  lu'fore 
us  furnishes  c«)nclnsive  evidence  of  these  fa«'ts. 

As  early  as  November  J2,  1.SS7,  Mr.   I'halps,  Tnited  States  Minister 


Hcvrrally,  to  each  (lovcrnnicnt  on  any  points  npon  wliich  tiu^y  may  h«  nnalih-  to 
aj;rofi. 

rht^Ho  reports  shall  not  lio  mado  pulilic  until  they  nhall  ho  Huhniittod  to  tin;  arhi- 
trators,  or  it  shall  apjioar  that  tiio  contingency  of  their  liein<;  used  hy  tlitt  arhitrii- 
torH  can  not  arise. 

,AuT.  X.   I'liih  (iovernnicnt  shall   pay  the  expenses  of  its  nieinhers  of  the  joint 
eoniniission  in  the  iineslij^ation  referred  1  «  in  tlio  proeedinf;  article. 

Aur.  XI.  The  <lerisions  of  the  trihiinal  shall,  if  j>ossil>le,  he  made  within  three 
iimntlis  frnni  the  iloso  of  the  argument  on  both  side,n. 

It  sliall  ho  made,  in  writiiif;  and  dated,  ftnd  shall  bo  Hignod  by  the  arbitrators  who 
may  assent  to  it. 

The  decision  shall  he  in  dnplieate.  one  copy  whereof  shall  he  delivered  to  the  ajjcnt 
of  the  I'nitod  Slates  for  h'  i  (ir>v(rnineiit,  and  the  other  eopy  shall  bt»  delivered  to  the 
a;;eiit  of  (inal  Hritain  foi  his  fiovernment. 

Aim'.  XII.  I'^atli  tJovornineiit  .shall  i)ay  its  own  agents  and  provide  for  tho  proper 
renniiieration  of  the  counsel  employed  hy  it,  and  of  the  arbitrators  appointed  by 
it.  and  for  the  expense  ol"  iirej)arin;;  and  8nhmi!liii<j[  its  case  to  the  tribunal.  All 
othci'  expenses  eonijected  with  the  arbitration  shall  be  defrayed  by  the  two  (iovern- 
ineiit  in  (M|Ual  moieties. 

Ai:r.  Xlll.  The  arbitrators  shall  kce|)  an  accurate  record  of  their  proceedinj;s, 
and  uiiiy  ajtpoiut  and  employ  the  necessary  oHieers  to  nssist  them. 

Aur.  XIV.  The  llifih  Contractinir  riirtiesenj;a;;e<l  toccuisidrr  the  result  of  the  pro- 
ceediuf^s  of  the  tribunal  of  arbit  rati(ui,  as  a  full,  perfect,  antl  (inal  setlh'iuent  of  all 
the  (piestions  referred  to  the  arbitrators. 

Aur.  XV.  I'ht!  present  treaty  sliall  Ix!  duly  ratiliod  by  the  Tresidentof  the  (Jnitod 
States  of  America,  by  and  with  the  advice  and  eonsont  of  llu!  Senate  thereof,  and 
b\  Her  nritaiiiiie  M.'ijesty ;  and  the  ratilieation  shall  he  ex<dian;;ed  either  at  Wash- 
injitou  or  at  London  within  six  months  from  the  date  hereof,  or  earlier  if  possible. 

In  faith  whereof  we,  the  respective  Plenipolcutiarics,  have  signed  ihi.s  treaty  and 
have  hereunto  aflixed  onr  stais. 

Done  in  duplicate  at  Washin^^tou  the  twenty-ninth  day  of  February,  one  thousand 
eight  hundred  and  niucty-two.  Jamk.s  G.  Hlaink.  [.skai-.J 

JUUA.S    PAU.N'CBKOTE.      [8RAL.] 


■n 


14 

nt  TA)n(1()n,  liiul  nu  iiifprviow  witli  flio  Miininis  of  Sitlisbnry,  P.iiHsli 
K(^«T«'tiiry  of  State  fur  l''oriMj;ii  A  Hairs,  in  wliicli  tlir  lonii«'riMo|Mtsr<l,  on 
tiMi  pm-t  of  tilt'  (iuvn-niniMit  of  tlio  Unite*!  States,  tliat  l>y  niiitnal 
>i};n>(>niont  of  tliu  two  (i(»voi-nn)cnts  h  (mmIi*  of  ic^nlations  !>*>  ailoptcil 
for  tli«  |)n's«'rva(ion  of  the.  seals  in  Heiin;;  Sen  from  (h'strnrtioii  at  irii- 
proper  times  and  by  iinpi'opeiineans  by  the  «'ili/,eus  of  eitliei-  country — 
sim-.li  affieenient  to  be  entirely  irrespective  of  any  (p«estions  of  conllict- 
inj;  Jnrisdietion  in  tlioso  waters.  In  this  view  liis  hudsiiip  promptly 
a<!(piiesc<>(l,  iiinl  sM;;<:'este(l  tliat  the  American  minist(>r  obtain  from  his 
(ioverninentand  snbmit  a  slvet(;li  of  a  system  of  re;;nhitions  that  wonhl 
be  adeipiate  for  that  i)nrpose.     l'.  S.  Caxc.  .!/'/>.  Vol.  /,  jt.  It  I. 

The  American  Secretary  of  State,  Mr.  UaAaid,  l»einy  informed  ol 
this  interview,  wrote  t/O  Mr.  IMn'lps,  nnth'r  date  of  Kel)'nary  7.  ISSS, 
SHjJKestiny;  that  tlie  only  way  t^)  prevent  tlie  destrnction  of  tlic  seals 
appeared  to  be  for  tlie  United  States,  (Ircat  Mritain,  and  other  inter- 
este«l  powers  to  take,  conci'rted  aetion  restraining'  their  citizens  or  snl»- 
jects  from  killin};  then>  with  llrearms,  or  other  destrnctive  weapons, 
*'  nortli  of  oO"*  of  m)rtli  latitude,  and  between  1(10"' of  lon;;itn(U'  west  and 
17<r  of  lon^'itinle  east  fr(Mu  (J-reenwich,  during  the  period  interveninj; 
between  April  l.">  and  November  1.  'i\»  prevent  the  killing;'  within  a 
nnirine  belt  of  10  or  .">0  miles  from  the.  islands  dnrinjr  that  period  W(nild 
be  inelVectiial  as  a  preservative  measure.  This  would  clearly  l»e  so  dnr- 
iny  the  approach  of  tlu^  seals  lo  the  islands.  And  after  their  arrival 
there  such  a  limit  of  protection  woidd  also  be  insuflicient,  since  the 
vapid  pr(»};ress  of  the  seals  thronji^h  the  watei'  einibles  tluMU  lo^o  y;reat 
distanees  trom  the  islands  in  so  short  a  time  that  it  has  Imhmi  <*alculated 
that  an  ordinary  seal  could  <••(>  to  the  Aleutian  Islands  and  back,  in  all 
a  di  *an(^e  of  .''»tlO  uv  100  miles,  in  less  than  two  days.'' 

In  the  same  letter  Mr.  liayard,  referrin.n'  to  the  threatened  extermi- 
nation  of  these  seals  i»y  pela;;ic  sealers,  usinj;'  firearms,  nets,  and  other 
destructive  implements,  said  :  "Thai  the  extermination  of  the  fur  seals 
must  soim  take  places  unless  they  are  protected  from  destine! i(ui  in 
IJerins' Sea  is  shown  by  the  fate  of  the  animal  in  othei'  parts  of  the 
world  in  the  absence  of  concerted  a«'tion  amoufj:  the  nations  intert'sted 
for  its  preservation.  *  *  *  It  is  manifestly  for  the  interests  of  all 
nations  that  so  deplorable  a  thiny  should  not  be.  allowed  to  occur.  As 
has  already  been  stated,  on  the  Pribilof  Islands  this  Government 
strictly  limits  the  lunnber  of  seals  that  may  be  killed  under  its  own 
lease  to  an  Ameriean  (company,  and  citizens  of  the  United  States  have, 


15 


iliirinjr  the  ]y.\f*t  your,  boon  iirrostrd  ;mh1  ton  Ainorlrmi  vossHh  hoI/.ojI 
for  killing  tiir  simIs  in  lioriii);  Sim.  Kii;:liiiMl.  Iiowovcr,  has  uii 
csperiitlly  ^'t-(>at  iiitiMcst  in  this  niatt<>r  in  atlWilion  to  that  whi<'h  sht^ 
niUHt  ft^el  ill  pn^vtMitin^  tht^  oxtciinination  ol°  an  iiniinal  whirli  ron- 
trilnitcil  so  niiirh  to  thi>  ^'ain  an<I  <-ornloi't  of  iit'r  pcoph'.  Nearly  all 
nn<lrt'Hs«Ml  fur  sral  skins  arc  snit  to  London,  whrn'  thry  air  dn'ssed 
anil  <lytMl  for  thi'  inarki't  and  wIuto  many  of  tlii'in  arc  sold."  U.S. 
i'line,  App.  r«/.  /,  pp.  IT.'i,  IT  I. 

This  in'oposal  was  i-oininnniratiMl  to  the  Marquis  of  Salishnry  and 
licrami'  the  snbji'ct  of  confi'icnrii  lu'twcrn  tin'  irincsiMitativi's  of  (iiiMt 
Uritaiii,  tli(^  irnitnl  Stall's,  and  Russia.  T.  S.  Casr,  A|.p.,  Vol.  I,  p. 
I7"».  A  ronntcr  pi'o|>osition  was  made  by  tlio  Marquis  of  Salisiuiry  to 
tlu^  effect  that  "  with  a  view  to  inei'tiii};  the  Ikussian  (loveinient's  wishes 
I  respeetiiij;   the  waters   siirroundin<;    UoblxMi    Ishmd,"  the  "  whole  of 

IJrrin^  Sea,  those  portions  of  the  Sea  of  Okhotsk,  and  of  the  l*aeili<5 
Oeean  north  of  north  latitude  47°  should  be  ineluded  in  the  juoposed 
arraiifieineiit."  lie  further  said  "that  the  period  proponed  by  the 
United  States  for  a  closed  tiim; — Ai)ril  l.'»  t(»  November  1 — ini^'ht  inter- 
fere with  the  trade  longer  than  absolutely  necessary  for  the  proti'ction 
of  the  seals,  and  he  su^jyestcd  October  1,  insti'ad  of  a  month  later,  as 
the  termination  of  the  period  of  seal  jn'otcct  ion."  If.  IS.  Cafic,  Vol.  I, 
App.,  p.  II fK 

The  result  of  the  altovi^  conference  is  thus  stilted  in  a  letter  from  the 
Marijuis  of  Salisltiiry  to  tlu!  Ilritish  ISIinistcr  at  Washington:  "At 
this  preliminary  disiMissiiui  it  was  (hri(lnl.  prorisioHtill!/,  in  onlrr  to 
/'nniish  a  hasis  for  nvijntititUm,  and  without  detlnitely  plcdjiinji'  our 
(Joveriiments,  that  the  space  to  be  covered  by  the  proposed  convention 
sJMMild  be  ihe  sea  heficrcn  Amnint  and  li'iissia  norlh  of  tlir  foriy- 
svrenth  dciirce  of  hitUude;  that  the  close  time  should  extend  from  the 
loth  Ai)ril  t,o  the  1st  Xoveiuber;  that  duriii]:;  that  time  the  slauj-hler 
of  all  seals  should  bo  forbidden,  and  vessels  en;;ii;;c(l  in  it  should  l>e 
liable  to  seizure  by  the  cruisers  of  any  of  the  three  powers,  and 
should  betaken  to  the  port  of  their  own  nationality  for  condemnation; 
that  the  trallic  in  arms,  alcohol,  and  powder  should  be  prohibited  in 
all  the  islands  of  those  seas;  and  that,  as  soon  as  the  three  power.s 
had  concluded  a  convention,  they  should  Join  in  submittinjj  it  for  the 
assent  of  the  other  maritime  powers  of  the  northern  seas.  Tiie  United 
States  Charj,^'!  d'Attaires  was  exceedinj^ly  earnest  in  pressinjj  on  us  the 
importance  of  dispatch,  ou  aucuuut  of  the  inuonceivable  slaiightei-  that 


16 


li  J 


lind  hoou  ;«inl  M'\]\  wim  iio'\i\<i  on  in  fliaso  so!i><.  Ifo  statod  that.  In 
a«l<litii»n  Ut  Mio  vast  *|U;intity  l>roii;;lit  t<>  in;irkt'.t,  it  was  u  (loiunioii 
practice  fov  tlioso  (Mi^'a<;o(l  in  tiiu  trado  (o  slioot  all  seals  tliry  ini;>lit 
MUM't  ill  tlitt  open  s<>a,  ami  that  of  tliesoa  ;ii'«>at  niiinlK'r  sank  m<>  that 
their  >kiiis  roiihl  nut  ln' ktmn  ••n'd,"'  A  similai  letter  was  sent  to  iSir 
\l.  MoritT,  Mritish  Anibassailor  at  St.  Pelersltiirfif.  Urilixh  Case,  App., 
Vol.  1 1 1,  p.  I'.X!;    V.  S.  Cn-sc,  A  pp.,   '  ul.   I,  p.  Hr.H. 

The  elose  time,  lliiis  provisionally  tUM'ided  upon,  eovered,  as  will  he 
seen,  not  only  Meiin^j  Sisi,  hut  the  entire  North  I'aeille Ocean  between 
AnM'iiea  ami  Ifiissia,  iioiih  ot'llie  lorty-sevenlli  dej;ree  of  latitude. 

.^Ir.  P.ayanl.  writin,;^  to  Mr.  White,  the  lJiiit«'d  States  (/liar;;<! 
d'AtVaiies  at  liomlon,  under  date  of  May  I,  ISSS,  said:  ''As  you  have 
already  been  instriieted,  the  hepartinent  does  not  obJ(>et  to  the  iiielit 
sion  of  th(^  Sea.  of  Okhotsk,  or  so  nin(;li  of  it  an  may  be  necessary,  in 
the  arraiii^'enient  for  the  protection  of  the  seals.  Nor  is  it  thoiij^ht 
absolutely  necessary  t»  insist  on  the  extension  of  the  close  season  till 
the  1st  of  Novemltcr.  Only  such  a  i>eriod  is  desired  as  may  be  requi- 
site lor  the  end  in  view.  I>iit  in  order  tliat^  success  may  be  assured  in 
the  ell'orts  of  the  various  <j;ovcrninents  inter»'sted  in  the  protect i«ui  of 
the  seals,  it  .seems  atlvisable  to  take  the  l."»th  of  October  iiistea<I  of  the 
1st  as  the  dat«i  of  tin;  <'lose  season,  althnimh,  as  I  am  now  advise«l,  the 
1st  of  November  would  b(i  safer.     U.  S.  (,'(tsr,  App.,  K«/.  f,  p.  ISO. 

In  the  course  of  a  friendly  diseussion,  Xovember,  IS.SM,  between 
Mr.  rdaiiie,  tlu^  Anu'i  lean  Secretary  of  State,  and  Sir  Julian  I'aiincc- 
fotc,  liritisli  Minister  accredited  to  tin;  United  States,  the  former 
(accordiiij;  to  the  repcu't  of  that  discussion  made  by  the  latter  to  the 
Mar<|uis  of  Salisbury)  said:  '"The  fur  seal  was  a  species  most  valuable 
to  mankind,  and  the  IW'iin.u's  Sea  was  its  last  stronghold.  The 
Tnited  States  had  b(»u;;iit  tin?  islands  in  that  se.a  to  which  the.se  crea- 
tures periodically  resort  to  lay  their  yoiiii^',  aiul  now  (Janadiaii  tisher- 
inen  step  in  and  slau<;hter  the  seals  <mi  their  passa}?e  to  the  islands, 
without  takin.u  heed  of  the  warnin«»s  ^iveii  by  Canadian  oHieials  them- 
selves, that  the  result  must  inevitably  be  the  extermination  of  the 
species.  This  was  an  abuse,  not  only  reprehensible  in  itself  and 
opposed  to  the  interests  of  mankind,  but  an  infraction  of  the  rijjhts  cf 
the  United  States,  ft  intlictod,  moreover,  a  serious  injury  on  a  neififh- 
boring  and  friendly  State,  by  «leprivin};  it  of  the  fruits  of  an  industry 
on  which  vast  sums  of  money  had  been  expended,  ai'd  which  had  long 
been  pursued  exclusively,  and  for  the  general  benetit.    The  case  was 


17 

w)  sfioii;;  as  fo  iM't'cssifiit*^  iiH'iiMiiri's  of  soU'ih'fi'i'sr  for  t\w  viiidiciitioii 
of  till'  ri;;lil.s  III'  tli(>  iriiiti'il  Stiitr.s  iinil  tin-  protrctinii  ol'tliis  \iiliial)U« 
lislicry  tiotii  lU'sliiictioii.'* 

.Mr.  IMiiini'Vs  litii«>  iliiriii;,Mliis  disiiisHioii  (Sir  .liiliaii  l'iiiiiir<>rott' also 
ri>|Mii'tril|  WHS  most  iVji'iiiily  tlirou;^lioiil.  tiiiiiiirrstiii;;'  "ii  striiii;^-  ili'siri' 
to  lul  all  i|ii«'stloiis  of  l('<;iil  ri;{lil  iiixl  iiit«>i'iiatioiiiil  law  ilisappcar  in  an 
a;;rn>ni<'iit  lor  a  <-los«>  season,  w  liicli  In-  iMlicNcs  lo  Im>  iir<;rntly  railfil 
ioi'  in  tlic  roniiiion  intfiest.'"  In  n-ply  to  liis  olisfivations,  the  I'lrilisli 
Minister,  anioiiy:  oilier  thing's,  said  :  ''As  i(';;arded  lliei|iieslion  of  Carl, 
namely,  tluMlaiip'i'  of  exteiinination  of  tlie  fur  seal  s|)e(;ieH,  and  the 
n«'eessity  for  a'elose  season,' there  was,  iinfortiiiiately,  a  eoiitlict  of  opin- 
ion, iiiit  if,  upon  a  further  and  more  eomplele  examination  of  the  evi- 
deiire.  Her  Majesty's  (ioviMlitnent  siioiild  eome  to  tin  v  •  icliision  that  a 
'elose  season'  is  really  ne<'essary,  and  if  an  a;::reeni(*nt  should  be  arrived 
at  on  the  subjeet,  all  dilferenees  on  questions  of  le;/"l  ri^l'ts  would  iji.so 
yWc/o  disappear.''     liiUisk  Chhc,  Afijt.,  Vol.  1 1 1,  fi^/.  .iMt,  r,!. 

Inasul»s  !' lit  letter,  written  in  Ajiril,  liS'.K)  by  Sir. lull  im  I'auneefote 
to  Ml-,  lilaiiie,  the  forinek  said:  ''It  has  been  adniitleil,  iroin  the  eom- 
meiicement,  that  the  sole  object  of  the  iiepitiatioii  is  tlif  prtxvrrution 
of  thf  J'w  xcul  species  for  the  henrjif  of  ni<iiilxiii>l,  and  that  no  <*«Hi.sid- 
erations  of  advaiita<;e  to  any  particular  nation,  or  of  benefit  to  any  pri- 
vate inttM'est,  should  enter  into  the  questiiui."  r.  S.  fuse,  App.,  \'ol.  /, 
p.  i>()l,  MH.  I'lider  date  of  June  ;J,  1S!M),  Sir  .luliaii,  wiitiii};  to  .Mr. 
lUaiue,  observed  :  "  Her  Majesty's  (lovernmenthavealwaysbeeii  willini'', 
without  pk'd]L?in;''  themselves  to  details  <ui  the  <|uestious  of  area  and 
date,  to  carry  on  ne;,'otiatious,  hopiiijx  thereby  to  come  to  some  arraiij;(! 
meut  for  such  a  close  season  os  is  ueeessary  in  order  to  preserre  tlie 
seal  species  from  e.cti  net  ion  jhxit  tlu'  provisions  of  such  an  aiiaii;jeiucnt 
would  always  reijuirele^fislative  sanction  so  that  the  measures  tlier»'by 
(letermuM'd  may  be  enforced."     (7.  S.  Case,  App.,  Vol.  I,  p.  L*:JO. 

The  Manpiis  of  Salisbury,  in  a.  letter  to  Sir  Julian  rauiicefotc  of 
June  20,  ISIM),  iiiflosin;,',  auion^;'  otlier  documents,  a  copy  of  tlu^  above 
letter  of  Ajiril  1(5,  ISHH,  addressed  to  the  Ihitish  representatives  at 
Washinjjfton  and  St.  Petersbur*;-:  "Iler  ^fajesty's  (Jovernnu'iit  always 
have  been,  aiul  are  still,  anxious  for  the  .rranjfeiiient  of  a  convention 
which  shall  provide  tchnterer  close  time,  in  tehatercr  localities  is  necessan/ 
for  the  preservation  of  the  fur  seal  species.''^  British  Case,  AjtP'f  Vol.  Ill, 
p.  492;  U.  S.  Case,  App.^  Vol.  I,  p.  237, 
11492 2 


IT 


18 

III  his  letter  to  Sir  Julian  Pauucel'ote  of  December  1 7, 1 890.  ^I r.  Blaine 
said: 

"The  [Jiiited  States,  in  protectinj;'  the  seal  llsheries,  wiil  not  iuter- 
I'ere  with  a  single  sail  of  coninierce  on  any  sea  of  the  globe. 

"It  will  mean  something  tangible,  in  the  President's  opiiiioii,  if  (Jreat 
Britain  will  consent  to  arbitrate  the  real  questions  whi'-h  have  been 
under  discussion  between  the  two  Governments  lor  the  lasi.  f(»ur  years. 
I  shall  endeavor  to  state  what,  in  the  judgment  of  the  President,  those 
issues  are: 

"First.  What  exclusive  Jurisdiction  in  the  sea  now^  known  as  the 
Bering  Sea,  and  what  exclusive  rights  in  the  seal  (isheries  therein 
(lid  Russia  assert  and  exercise  prior  aiid  up  to  the  time  of  the  cession 
of  xVlaska  to  the  United  States? 

"Second.  How  far  were  these  claims  of  Jurisdiction  as  to  the  seal  tish- 
eries  recogidzed  and  conceded  by  Great  liritain? 

"Third.  Was  the  body  of  water  now  known  as  the  Bering  Sea  in- 
cluded in  the  i)hrase  'Pacitic  Oceau'  as  used  in  the  treaty  of  ISL'.'i 
between  Great  IJritain  and  Russia;  and  what  rights,  if  any,  in  the 
Bering  Sea  were  given  or  conceded  to  Great  Britain  by  the  said 
treaty  ? 

"Fourth.  Did  not  all  the  rights  of  Russia  as  to  Jurisdiction,  and  as  to 
the  seal  tisheries  in  Bering  Sea  east  of  the  water  boundary,  in  the 
treaty  between  the  United  States  and  Kussia  of  iMarch  30,  18(»7,  pass 
unimpaired  to  the  United  States  uiuler  that  treaty? 

"Fifth.  AVhat  are  now  the  rights  of  the  United  Stiites  as  to  the  fur  seal 
tisheries  in  the  waters  of  the  Bering  Sea  outside  of  the  ordinary  terri- 
torial limits,  whether  such  rights  grow  out  of  the  cession  by  Russia  of 
any  special  rights  or  Jurisdiction  held  by  her  in  such  tisheries  or  in  the 
waters  of  IJering  Sea,  or  out  of  the  owiu'rship  of  the  breeding  ishinds 
and  the  habits  of  the  seal  in  resorting  thither  and  rearing  their  young 
thereon  and  going  out  from  the  islands  for  food,  or  out  of  any  other  fact 
or  incident  connected  with  the  relation  of  those  seal  tisheries  to  the 
territorial  possessions  of  the  United  States? 

"Sixth.  If  the  determination  of  the  foregoing  questions  shall  leave 
the  subject  in  such  position  that  the  concurrence  of  Great  Britain  is 
necessary  in  prescribing  regulations  for  the  killing  of  the  fur  seal  in  any 
part  of  the  waters  of  Bering  Sea  then  it  shall  be  further  determined : 
First,  how  far,  if  at  all,  outside  the  ordinaiy  territorial  limits,  it  is  neces- 
Hary  that  the  United  States  should  exercise  an  exclusive  Jurisdiction  iu 


19 


Older  to  protect  tlie  soul  for  the  time,  liviiij;  upon  tlie  islands  of  the 
Unitt'd  States  and  feedinj^  tlici'efnmi.  Second,  wliether  a  closed  season 
(duiinjf  which  tlie  killing'  of  seals  in  the  waters  of  IJerinj?  Sea  outside 
the  ordinary  territorial  limits  siiall  be  prohibited)  is  necessary  to  save 
the  seal-lishing  industry,  so  valuable  and  important  to  mankind,  from 
deterioration  or  destruction.  And  if  so,  third,  what  months  or  parts  of 
months  should  be  included  in  such  season,  and  over  what  waters  it 
should  extend."     U.  S.  Cane,  App.,  Vol.  I,  p.  285,  286. 

The  Marcpiis  of  Salisbury,  in  a  letter  of  February  21,  1891,  to  Sir 
Julian  Pauncefote,  expressed  his  assent  to  the  tirst,  secoud,  and  fiuirth 
ipiestions  propounded  by  Mr.  Iliaine,  and,  after  criticising-  the  third 
and  fifth,  proceeded:  '"The  sixth  ([uestion,  which  deals  with  the  issues 
that  will  arise  iu  ease  the  controversy  should  bi'.  <lecided  in  favor  of 
(Jreat  Britain,  wouhl  perhaps  more  fitly  form  the  subject  of  a  separate 
reference.  Her  iMaJesty's  Government  have  no  objection  to  refer  the 
general  question  of  a  close  time  to  arbitration,  or  to  ascertain  by  that 
means  how  far  the  enactmentof  such  a  iinnision  is  necessary  for  the  pres- 
ervation of  the  seal  species;  but  any  such  reference  ouylit  not  to  contain 
words  appeariiifj'  to  attribute  sjiecial  and  abnormal  rigiits  in  the  matter 
to  the  United  States."  BiUisli  Case,  App.,  Vol.  III,pt.  2, p.  8U ;  U.JS. 
Case,  App.,  Vol.  J,  p.  2'Jl. 

Eeplying,  under  date  of  April  14,  lS!t|,  ]Mr.  Blaine  observed  that 
although  Lord  Salisbury  suggested  a  different  mode  of  procedure  from 
that  embodied  in  the  sixth  question,  the  I'resident  did  not  understand 
him  as  objecting  to  the  question,  lie  restated  all  the  (luestions,  leav- 
ing the  first,  second,  fourth,  and  sixth  as  originally  [iroposed,  and 
reforming  the  third  and  fifth  questions  so  as  to  read: 

'•Third.  Was  the  body  of  water  now  known  as  the  Bering  Sea 
included  in  the  phrase  'Pacifl*;  Ocean'  at",  used  in  the  treaty  of  18l.'5 
between  (ii'eat  I'ritai.i  ami  llussia,  and  what  rights,  if  any,  in  the 
Bering  Sea  were  held  and  exclusively  exercised  by  Kussia  after  said 
Treaty? 

"  Fifth.  Has  the  United  States  any  right,  and  if  so  what  right,  of  pro- 
tection or  property  in  the  fur  seals  fre»pienting  the  islands  of  the 
United  States  in  Bering  Sea  when  such  seals  are  found  outside  the 
ordinary  three-mile  limit!"     U.  S.  Case,  App.,  Vol.  I,  p.  295. 

At  this  period  of  the  negotiations  a  correspondence  intervened  with 
resiiect  to  a  HJ0f/M6'  vivemli  between  the  two  (lovernments,  regulating 
the  taking  of  fur  seals  in  Bering  Sea  during  the  sealing  season  of 


■m 


20 


1801.  Wliilo,  tliiit  matter  was  IxMiiij  discussed  Sir  Julian  Pauncefotp, 
under  dato  of  Juiui  ."»,  l.Sltl,  notified  tlio  (lovernincnt  of  tlic  United 
States  that  Her  Majesty's  Government  were  prepared  to  assent  to  the 
first  live  questions  proposed  to  be  submitted  to  arbitration  in  Mr. 
lihiine's  note  of  April  14, 1891.  But  lie  added :  '*  Her  JMaJesty's  Govern- 
ment can  not  fjfive  tlieir  assent  to  tiie  sixth  (luestion  formulated  in  Miat 
note.  In  lieu  thereof  they  prttjwse  tho.  appointuu'nt  of  a  commission  to 
consist  of  four  experts,  of  whom  two  shall  bti  iu>minated  by  each  Gov- 
ernment, and  a  chairnuiu  who  siiall  be  non:inated  by  the  Arbitrators. 
The  Commission  shall  examine  and  report  on  the  (piestion  which  follows: 
'  For  the.  purpose  of  preserviuj^  the  fur  seal  ra(;e  in  Merinj;'  Sea  from  ex- 
termiiuition,  what  international  arranj;ements,  if  any,  are  necessary 
between  Great  Britain  and  the  United  States  and  Kussia  or  any  other 
power?'"     U.  »S'.  C(t,s>;  A  pp.,  Vol  l\p.  305. 

Then  I'ollowed  some  correspoiulence  between  Mr.  Wharton,  Acting 
Secretary  of  State  tor  the  United  States,  and  Sir  Julian  Paum-eibte,  in 
leference  to  the  proposed  nuxtiis  rircndi  for  1801.  The  terujs  of  that 
moduN  rircndi,  as  proposed  by  the  United  Slates,  were  coniuuiiiicated 
to  Lord  Salisbury.  They  were  returned  by  the  latter  with  certain 
modifications  and  additions,  Tho  fifth  para{j;ra[>h  of  the  agreement 
proposed  by  Lord  Salisbury  was  as  follows:  "(5)  A  commission  of  four 
experts,  two  nominated  by  each  Government,  and  a  chairnuiu  luuni- 
mited  by  the  Arbitrators,  if  appointed,  and  if  not,  by  the  aforesaid 
commission,  >hall  examine  and  report  on  the  following  question:  'What 
international  arrangenumts,  if  any,  between  Great  Britain  and  the 
United  States  and  Russia  or  any  otherpower  are  necessary  for  the  pur- 
pose of  preserving  the  fur  seal  race  in  the  Northern  Pacific  Ocean  from 
extcrmiiuition?'"     U.  S.  Case,  App.,  Vol.  I,  p.  oil. 

It  thus  appears  that  the  Biitish  Governnu'iit  proposed,  in  coiniec- 
tion  with  the  motJuN  rircndi  for  1891,  to  ascertain,  by  means  of  experts 
representing  tlie  two  Governments,  what  international  arrangements 
were  necessary  "for  the  purpose  of  preserving  the  fur  seal  race  in  the 
Northern  Pacijie  Ocean  from  extermination." 

President  Harrison,  however,  insisted  upon  an  agreement  (such  as 
he  had  proposed)  relating  only  to  matters  that  were  appropriate  in  a 
modus  rircndi. 

Sir  Julian  Pauncelbte  wrote  to  ^Ir.  Wharton,  expressing  the  regret 
of  the  Marquis  of  Salisbury  that  his  proj)Osed  modifications  had  not  been 
accepted.    But  he  observed:  " Nevertheless,  iu  view  of  the  urjjfency  of 


21 


tlie  case,  his lordsliip  is  disposed  to  lUitJMU'izo  me  1o  sijjn  tlie  n<;rooiiioiit  in 
tiie  precise  teiiu.s  lonnulated  in  your  note  olMuin!  \),  ])rovided  the  ques- 
tion of  ii  joint  eoniinissionbe  not  h'l't  in  doubt,  and  that  your  (iovern- 
inent  will  give  an  assurance  in  some  form  that  they  will  eoneur  in  a 
referen<;e  to  a  Joint  (-oinniission  to  aseerlain  what  pernuinent  measures 
are  necessary  for  the  preservation  of  the  fur  sesil  species  in  the  Northern 
Vacijic  Ocean.'"     U.  S.  Case,  App.,  Vol.  I,  }>.  315. 

To  this  letter  Mr.  Wharton  replied  on  the  same  day,  as  follows: 
"Srit:  I  have  the  honor  to  acknowledjie  the  receii)t  of  your  note  of 
today's  date,  and  in  rei)ly  I  am  directed  by  the  President  to  say  that 
the  (.rovernmentof  the  United  States,  recognizinj;  the  fact  that  full  and 
ade(|uate  measures  for  the  protei'tion  of  seal  life  should  embrace  the 
tchole  tit'  Beriu}^  Sea  and  portions  of  the  North  Vavijic  Ocean,  will  have 
no  hesitancy  in  agreeing,  in  connection  with  ][er  ]\[ajesty's(lovernment, 
to  the  appointment  of  a  Joint  commission  to  ascertain  what  permanent 
measures  are  necessary  for  the  preservation  of  the  seal  speeies  in  the 
tcaters  referred  to,  such  an  agreement  to  be  signed  simultaneously  with 
the  convention  for  arbitration,  and  to  be  without  prejudice  to  the 
(piestions  to  be  submitted  to  the  arbitrators.  A  full  reply  to  your  note 
of  June  3  relating  to  the  terms  of  arbitration  will  not  bo  long  delayed." 
U.  S.  Case,  App.,  Vol.  I,  pp.  :il5,:U6. 

Under  date  of  June  !.'{,  IS'.H,  Sir  .lulian  Pauncefote  wrote  to  Mr. 
Wharton:  "  I  lost  no  time  in  telegraphing  to  the.  ]Mar<]uis  of  Salisbury 
the  contents  of  your  note  of  ,7uiui  11  conveying  the  assent  of  your  (Jov- 
ernment  to  the  api)ointment,  in  connection  with  Her  jAIaJesty's  (Jov- 
ernment,  of  a  Joiiit  commission  for  the  ])urpos(^  mentioned  in  mynctte 
to  you  of  the  sa:ne  date,  such  agreement  to  be  signed  simultaneously 
with  the  convention  for  arbitration  and  to  be  without  prejudice  to  the 
questions  to  be  submitted  to  the  arbitrators.  1  informeil  his  lordship 
at  the  same  time  that,  in  handing  me  the  note  umJer  reply,  you  had 
assured  me  that  the  President  was  anxious  that  the  <'ommissi(tn  should 
be  appointed  in  time  to  con-men«!e  its  work  this  season,  and  that  your 
Government  would,  on  that  account,  use  their  utmost  ettbrts  to  expedite 
the  signature  of  the  arbitration  convention.  I  now  have  the  honor  to 
inform  you  that  I  have  this  day  retieived  a  <^elegraphic  reply  from  Lord 
Salisbury  in  which,  while  conveying  to  nie  authority  (o  sign  the  pro- 
]»osed  agreement  for  a  modus  rirendi  contained  in  ycmr  note  of -Tune  1>, 
his  lordshij)  desires  me  to  place  on  record  that  it  is  signed  by  me  on  the. 
clear  understanding  that  the  Joint  commission  will  be  appointed  without 


22 


It  1 


I 

I,' 


delay.  On  that;  niulorstaiHlinjTf,  tlnMofore,  T  shall  l>e  pro])aro(l  to  attend 
at  the  State  Dopartiuent  for  the  imri>()se  of  sij;iiiiig  tlie  as'i'^ieaient  at 
such  time  as  you  may  be  good  enough  to  appoint."  U.  S.  Ca^e,  Vol.  J, 
■App.i  p.  310. 

On  the  same  day  Mr.  Wharton  ^vl•oteto  Sir  Julian  Tauncefote:  "Tiie 
President  directs  nic  to  say,  in  response  to  your  note  of  this  date,  that 
his  assent  to  the  proposition  for  a  joint  commission,  as  expressed  iu 
my  note  of  June  0,  was  given  in  the  expectation  that  both  Governments 
would  use  every  proper  etlbrt  to  adjust  the  remaining  points  of  dilfer- 
ence  in  the  general  correspondeiu-e  relating  to  arbitration,  and  to  agree 
upon  the  definite  terms  of  a  submission  an<l  of  tlie  appointnient  of  a  joint 
<;ommission  witliout  unnecessary  delay.  Jle  is  glad  that  an  agrccnjent 
has  linally  been  reached  for  the  pending  season;  and  I  beg  to  say  that 
if  you  will  call  at  the  Department  at  10  o'clock  JMonday  next,  I  will 
be  glad  to  pu'^  into  writing  and  give  formal  attestation  to  the  moihis 
vicendi  which  lias  been  agreed  upon."  U.  S.  Case,  A})}).,  Vol.  J, 
p.  31G. 

Under  the  assurance  thus  exacted  by  and  given  to  thel'ritish  Gov- 
ernment Wio  modus  riecndi  for  1891  was  signed  and  tlie  negotiations 
iu  respect  to  the  matters  to  be  submitted  to  arbitration  were  resumed. 

Mr.  VViiartoii,  under  date  of  June  i-T),  1S!)1,  addressed  a  <;onununica- 
tion  to  Sir  Julian  Tauncefote,  in  which,  after  referring  to  the  agree- 
ment of  the  ])ar(ies  in  res[)ect  to  the  lirst  five  <iuesti(>ns  and  to  the 
objection  that  Lord  Salisbury  had  made  to  the  sixth  (juestion,  asform- 
ulaiod  by  ]\Ir.  I>laine,  said: 

"I  am  now  directed  by  the  Piesi<lcnt  to  submit  the  following,  which 
he  thinks  avoids  the  objection  urged  by  Lord  Salisbury: 

(('»)  If  the  determination  of  the  foregoing  questions  as  to  the  exclu- 
sive jurisdi(-t  ion  of  the  United  States  shall  leave  the  subject  in  sucli 
position  that  the  con<!nrrenceof  Great  Britain  is  necessary  to  the  estab- 
lishment of  regulations  for  the  j)roper  protection  and  preservation  of 
the  fur  seal  in,  or  hahitunlhj  rcsortinff  to,  the  Bering  Sea,  the  arbi- 
trators shall  then  det<'rmine  what  coiuMirrent  regulations  outside  the 
jurisdictional  limits  of  the  resi)ective  Governments  are  necessary,  mid 
over  what  iraters  unch  rcffuhitlouH  should  extend;  and  to  aid  them  in 
that  determination  the  report  of  tlui  Joint  Commission  to  be  appointed 
by  the  res[)ective  GovernnuMits  shall  bi^  laid  before  them,  with  such 
:)ther  evidence  as  either  (xovernment  may  submit.  The  contracting 
narties  furthermore  agree  to  cooperate  in  securing  the  adhesion  of 
other  powers  to  such  regulations." 


23 


fn  iln'  same  letter  Mr.  VVliarlon  submitted  a  proposal  for  tlie 
iipi>oiiitiiient  ot'a  Joint  Commissioii  by  the  two  (lovenimciits,  in  accorW- 
ance  with  tlie  assurance  given  by  the  I'resident  in  the  letter  of.Iun*^ 
11,  ]81H,  from  ^Ir.  Wiiarton  to  Sir  Julian  Pauneefote.  The  terms  of 
this  projjosal  were  accepted  by  Lord  Salisbury,  and  they  appear  in 
Article  IX  of  the  treaty.     U.  S.  Cuhc,  Ajyp.,  Vol  I,  pp.  319,3^0. 

The  British  Government  aceepted  the  sixth  question  as  thus  fornju- 
lated,  and  that  (juestion  constitutes  Article  VII  of  the  treaty.  I  do 
not  find  in  any  part  of  the  dij)lomatic  correspondence  any  criticism  by 
representatives  of  the  British  Government  of  that  cpiestion  as  last 
formnliited. 

Other  evidence  throws  lip;ht  upon  the  incjuiry  whether  it  was  not 
well  understood  by  the  llritish  (Tovernment,  after  the  signinj;- of  the 
viodiift  vivcndl  for  1891,  if  not  before,  that  the  iuijuiry  as  to  what  was 
necessary  to  ju-otect  the  fur  seal  race  embraced  both  Bering  Sea  and 
the  North  Pacitic  0(;ean. 

The  commission  issued  June  15,  ]S01,byner  Majesty  to  the  two 
commissioners  appointed  to  investigate  seal  life  recited  that  they  were 
ai)i)ointed  "for  the  purpose  of  in(piiry  into  the  conditions  of  seal  life 
and  th(!  precautions  necessary  for  preventing  the  extermination  of  the 
fur  seal  upcch'H  in  lieiing  Sea  and  oflitr  purU  of  the  North  I'aeifte 
(h'e.dn.^''  Substantially  the  same  recitals  were  made  in  the  letter  of 
instiuctions  issued  to  those  conimissiouers  by  the  Marcpiis  of  Salisbury 
under  date  of  ,Ium^  21,  ISJU.  Subse((uently,  on  the  loth  .Jnnuary,  1S!>2, 
after  the  two  (Jovernments  had  agreed  in  writing  upon  the  ternjs 
emb(»died  in  and  constituting  Articles  VI,  VII,  VI II,  and  IX  of  the 
treaty,  the  Marquis  of  Salisbury  issued  another  letter  of  instructions 
to  the  British  Commissioners,  in  which  he  said:  "There  are,  however, 
a  fe'>'  Moints  to  which  Her  Majesty's  (lovernnMMit  consider  it  desirable 
that  your  special  attention  should  bo  directed.  You  will  observe  that 
it  is  intended  that  the  report  of  the  Joint  Commissioners  slnill  embrace! 
recommendaiions  as  to  all  nu'asures  that  should  be  adopted  for  the 
preserrution  of  seal  life.  Feu-  this  ])uri>ose  it  will  be  necess.iry  to  (!on- 
sider  what  IJegulations  may  seem  advisable,  whether  within  th«\jiu'is- 
di(!tional  limits  of  the  United  States  and  Canada,  »)r  outside  those 
limits.  The  Regulations  whi(!h  the  Commissioners  nuiy  recommend  for 
adoption  within  tlie  respective  Jurisdictions  of  the  two  countiies  will, 
of  couise,  be  matter  tor  the  consideration  of  the  respective  (lovern- 
ments,  while  the  regulations  aflecting  waters  outside  the  territorial 


24 


limits  Mill  liiivo  to  bo  consitlon'd  under  rlatiso  (5  of  the  Arbitration 
Ayi'ccinoiit*  [Alt.  7  of  tlio  TieatyJ  in  the  event  of  a  decision  beinjj  j;iven 
by  the  Arbitiat(»is  against  the  elaini  of  exeliisive  Jurisdiction  ])iit  for- 
ward on  Ijehalf  of  the  United  States.  The  Keport  is  to  be  presented  iu 
the  lirst  instance  to  tiie  two  (Jovernnients  for  tiieir  consideration,  and 
is  subse(iuently  to  be  laid  by  those  Governments  before  the  Arbitra- 
tors to  assist  them  in  determiniu};'  the  UKU'e  restrictted  question  as  to 
what,  if  any,  Ke<^ulations  are  essential  for  the  protection  of  the  fur- 
hearing  seals  outside  the  territorial  jurisdiction  of  the  two  countries.''^ 
British  Comm.  h'eport,  p.  Vii. 

And  the  report  of  these  commissioners,  presented  to  the  IJritish 
(lovernment  .Iune21,  1802,  recites  that  they  were  appointed  to  incjuire 
"into  the  conditions  of  seal  life  and  the  precautions  necessary  for  pre- 
venting' the  extermination  of  the  fur  seal  s2>eeies  iu  IJering  Sea  and 
other  parts  of  the  Korth  Vaeijlc  Oeean.'"  In  tlie  same  report  >vill  be 
found  "a general  viewof  tluM'onclusions  at  which  we  [the  Jiritish  Com- 
missioners] have  arrived  as  to  the  condition  of  seal  life  in  the  North 
Paeifie  Ocean,  and  as  to  the  measures  iuH;essary  for  the  preservation  of 
the  fur  seal  industryy  It  may  be  stated,  in  aildition,  that  the  Ameri- 
can Commissioners,  Profs.  Mendenhall  and  IMcrriam,  were  appointed 
by  the  President  "to  jn-oceed  to  the  Pribilof  islands  and  to  make  cer- 
tain investigations  of  the  facts  relative  to  seal  life,  with  ii  view  to  ascer- 
tain what  ])ermanent  measures  are  necessary  tor  the  preservation  of 
the  fur  seal  iu  IJering  Sea  and  the  Korth  Paeifie  Ocean.''^  II.  *S'.  Case, 
:ni. 

It  thus  appears  from  the  diplomatic  correspondence  befiue  us  and 
by  the  action  of  the  two  (Jovennnents — 

1.  Tiuit  each  GovernuuMit,  from  the  beginning"  to  the  end  of  the 
negotiations  resulting  in  the  treaty,  expressed  not  only  an  earnest 
desire  that  the  fur  seals  be  protected  against  extermination,  but  tlieir 
willingness  to  adopt  such  measures  as  were  nccicssary  to  ])ievent  the 
destruction  of  these  animals  by  its  citizens  or  subjects,  and  that  their 
action  should  be  concurrent; 

2.  That  the  British  (Jovennnent,  in  the  early  period  of  these  negotia- 
tions, agreed,  provisicinally  and  as  a  basis  of  negotiations,  that  a  closed 
lime  be  established,  from  April  1  to  November  1,  during  which  the 
slaughter  of  all  seals  be  forbidden  '  ':n  the  sea.  between  America  and 
Russia  north  of  the  forty-seventh  degree  of  latitude;''^ 


*  This  agrcomcnt  was  sij^ucd  Deccmbor  18,  18'J1.    Tbo  trt-aty  was  not  Hi<;ut'd  until 
Februiuy  29,  1892. 


25 


Ijitrsition 

])iit  for- 
•loiited  in 
bion,  :iii(l 
Aibitra- 
oii  as  to 

tlie  /«>•- 
ututrlcH.^'' 

3  IJiitisli 

o  iiHiiiire 

y  for  pre- 

Soa  and 

t  will  be 

:ish  Coiii- 

'he  North 

■vatioii  of 

le  Aiiieii- 

l)])(>intod 

iiakc  <;er- 

to  ascor- 

valioii  of 

.  S.  Case, 

e  lis  and 

(1  of  the 

earnest 

l)ut  tlu'ir 

vent  the 

lat  their 

negotia- 

a  closed 

iiieli  the 

riea  and 

>iicd  uutil 


.'5.  That  whih^  the  orii^inal  proposition  of  Lord  Salisluiry  was  for  a 
joint  eoMiniission  to  ascertain  what  international  arranj;enients  were 
necessary  ''for  the  purpose  of  preservinjjf  the  fur  seal  iac(Mn  nerin}* 
Sea  from  extermination,"  he  subseijuently  niodilied  tliat  position,  so 
as  to  refjnire  tliat  commission  to  ascertain  what  international  arrange- 
ments were  necessary  "  for  the  jmrpose  of  preserving  the  fur  seal  in  the 
Xi))ihcrn  Vacific  Ocean  from  extermination;" 

1.  That  tiu',  IJritish  Government  made  a  (toiulition  of  its  agrecnig  to 
tlie  pro])osed  modus  vivendi  for  18!)1,  relating  to  Bering  Sea,  that 
tli(^  President  of  the  United  States  would  give  an  assurance  in  some 
form  that  his  (Jovernment  would  eoncur  in  a  refennice  to  a  Joint 
commissiou  "to  ascertain  what  permanent  measures  are  necessary  for 
the  preservation  of  the  fur  seal  species  in  the  Northern  Pariftc  Oeean,''^ 
which  assurance  the  I'resident  formally  gave  to  the  IJritish  (lov- 
crnmeiit,  explicitly  stating  at  the  time  that  the  Oovernment  of  the 
United  States  recognized  "the  fact  that  full  and  ade(iuate  measures 
for  the  protection  of  seal  life  should  embrace  the  whole  of  J3ering  Sea 
nm\  ixtrts  of  the  North  Pacific  Occan;''^  and, 

o.  That  the  (lovernment  of  the  United  States,  having  in  view  th(? 
exi)licit  declaration  of  Sir  Julian  Pauncelbte,  that  "the  sole  object  of 
the  negotiation  is  the  preservation  of  the  fur  seal  si»eeies  for  the  bene- 
lit  of  mankind,"  and  the  equally  explicit  declarations  of  Lord  Salisbury 
tliat  her  Majesty's  (Tovcrnment  was  anxious  for  the  arrangement  of  a 
convention  which  "shall  provide  wlfatever  close  time  in  whatever 
locitliticft  is  ncccssarj/  for  the  preservation  of  the  fur  seal  species,''^  and 
ascertain,  by  arbitration,  how  far  such  a  close  time  was  necessary  "for 
the  preservation  of  the  fur  seal  species,"  and  in  order  that  the  Arbitra- 
tors, if  appointed,  might  consider  measures  for  the  ]>rotection  of  seal 
life  "throughout  tlie  whole  of  Bering  Sea  and ])ortions  of  the  Northern 
l*iu-ilic  Oeean,''^  modified  the  sixth  question,  as  originally  formulated, 
and,  instead  of  concurrent  regulations  "for  the  killing  of  the  fur  seals 
ill  any  ])art  of  the  Bering  Sea,"  outside  of  ordinary  territoiial  limits, 
as  was  lirst  pro])os(Ml,  jirovided  for  concurrent  regulations  (if  the  con- 
currence ot  (J  reat  Britain  was  tbund  to  be  ueeessaiy)  "for  the  proi)er 
l)rotection  and  preservation  of  the  fur  seal  in,  or  hahiliudly  resorting 
to,  the  Bering  Sea." 

It  could  not  have  escapoil  the  attention  of  Lord  Salisbury  that  the 
citect  of  this  modification  of  the  sixth  (piestion  was,  beyond  all  (juestion, 
to  enable  this  Tribunal  to  prescribe  concurrent  regulations  to  protect 


n 


iiiid  prosprvc  nil  fur  so:ils  tlint  Imbiliinlly  roworlod  to  tlic  islsnuls  of  tlio 
I'nik'd  Sliitc.siii  MciiiifjScii,  iiltlM)ii;^li  Wwy  iiiijjflit  not  rciuiiiii  diiiiii;;  llic 
wlioh' orciich  yiiiir  in  tliiitsoa.  And  tlKMniMlilication  wliicli  llic  Hnilcd 
Htiitcs  lUiidoof  tlio  sixth  qnostiiMi  l)r()ii>;'ht  it  into  iiarniony  with  the 
iii'th  qiii'stion,  pi(.'vi(/nsly  iisscnted  to,  \viH«di  involved  an  iminiiy  as  to 
wlu'tlicr  Ihcllnitcd  States  has  "any  ii;;ht.  and  if  so  wlial  riyiit,  td' 
protection  or  property  in  the  Inr  seal  finiiiniliii;/  lite  i.shiii<ls  of  the 
I'liilcil  Statrs  ill  licrhiff  Sen  when  snch  seals  arii  found  (»ntsid«^  tiie 
ordinary  three  mile  limit  T'  Tliese  seals  do  not  the  less  frecpient  those 
islands,  nor  the  less  habitnally  resort  to  ilerinj;:  Sea,  be<'anse  their 
habit — as  both  (Jovornnients  w(dl  knew — was,  in  the  fall  of  every  year, 
atabont  the  same  time,  to  leavo  their  breodin,ij  <i:rounds  at  the  I'rihilof 
Islands  and  <;'o  to  the  south  of  the  Alentian  Islands  into  th(>  North 
Paeilic Ocean,  from  which  ocean  each  year  and  at  the  same  lime,  they 
returned  to  |{erin;i'"  Sea  and  to  their  established  breeilinj;  grounds  on 
the  islands  of  St,  I'anl  an<l  St.  (leor<;e. 

Hut  this  is  not  all  that  is  sujij^estod  by  the  modification  made  of  the 
sixth  (piestion.  Uecurrinj;'  to  the  words  of  that  (piestion,  in  its  orij;inal 
form,  it  will  be  secMi  that  om^  of  the  matters  to  be  deterunned  in  the 
event  the  C()n(!iii  reuce  of  Clreat  iiritain  was  necessary  in  ])rescribin<;' 
rej^nlalions  for  tin;  ''killin«»"  of  fur  seals  in  the  waters  of  Herinf?  Sea. 
was  whether  a  ''closed  season  (during?  which  the  killinj;'  of  fur  seals  in 
the  waters  of  IJering  Sea  outside  the  ordinary  territorial  limits  shall 
be  pndiibited)  is  necessary  to  say'*'*  the  seal-lishinj;'  industry,  so  valuable 
and  important  to  mankind,  froai  det(^rioration  or  destruction."  Here 
we  have  the  sui^^cstion  by  the  United  States  of  a  closed  season,  dur- 
inj4'  which  the  takin<>-  of  those  seals  mii>lit  be  entirely  prohibited.  What 
was  the  reply  of  the  ^Faninis  of  Salisbury  to  this  su«;ji'estion?  It  w^aa 
that  if  the  reference  to  arbitr.ition  did  not  contain  "words  which 
attribute  special  and  abnoiinal  ri{;hts  to  the  United  States,"  Her 
iVIaJesty's  ( JovernnuMit  had  "  no  objection  to  refer  the  ji'eneral  cpu^st  ion  of 
a  closed  time  to  arbitration,  or  to  ascertain  by  that  means  how  far  the 
enactment  of  sncdi  a  i»rovision  is  necessary  for  ilic  pyeNcrnifion  of  ilie 
seid  spcrii's.''^  In  other  words,  he  did  not  object  to  a  prohibition  of 
l)elajjic  sealin{>'  duriiij;'  su«'h  closed  time  as  was  found  to  be  necessary 
for  the  ju'eservation  of  the  species.  And  it  is  a  fact  of  much  signill- 
cance  that  while  the.  sixth  (piestion  referred  to  the  concurrence  of 
(ireat  r.ritain  in  pres(!iibing  re^^iilat ictus  for  the  "killing"  of  the  fur 
seals  in  l,he  waters  of  lleriuij  Sea  that  question,  as  finally  propounded, 


^7 


adc  of  the 
ts  orij^iniil 
iiicd  in  tlio 
trescribiiij^ 
?('riiiji:  8i';i 


ninittod  any  words  ('Oiicoiiiiii;;-  i(';;idi»ti(Mis  for  tlio  killin;,'  of  sonis  in 
iiiiy  |>iirtifuliir  wateis.  but  made  tlir  cstahlisliinont  of  n'^itlations  Ity  tiio 
Ail)i(rat(»rs  drpciid  aloiumpon  tlu>ir  dctoriuiiiatioii  in  rcsiMMt  "  to  tlir 
exclusive  Jiirisdi(!tion  of  tlio  Uiiilcd  Stall's,"  and  (ho  ncccssify,  irsult- 
iii;^-  IroMi  that  dcti'rniinatioii,  of  prcscnibinf;  conr'arrcnt  r<'<;nIatioiis,  not 
for  th«!  killing  of  fur  st'al,  Imt  "for  tho  )>iu|»('r  protection  and  prcs- 
ciA'ation  of  th<^  fur  seal  in,  or  habitually  rcsoiliujj;'  to,  tin?  waters  of 
IW'rinj,'  Sea.''  This  tdninj;(>  of  ]>hrasoolo<>y  socnis  ]»!aiMly  to  indicate 
that  the  nniin  jiurpose  was  to  protect  the  seals  by  whatcxer  means 
were  found  to  be  necessary.  And  such  nnist  have  been  the  desire; 
for  what  objo't  c(Mdd  tlien>  have  been  to  regulate  the  taking"  of  ani- 
mals unless  their  existence  was  to  be  preserved? 

Miudi  stress  has  been  Iiiid  upon  isolated  passages  in  connnunications 
emanalin<;-  from  the  State  I)e[»arlnH'nt  (d"the  Tnited  Slates  in  which  it 
was  said,  in  ditl'erent  Ibrms  of  language,  that  the  area  of  eoutrulUm 
between  CJreat  Hritain  ami  the  United  States  iclated  only  t(>  IJcring  Sea. 
That  stateuu!ut  was,  in  a  certain  sense,  stiictly  accuiate,  for  the  dis- 
pute between  the  two  Uovernmeuts  arose  out  of  sei/urc's  made  in  that 
sen.  The  legality  of  those,  seizures  was  tin;  principal  and  vital 
matter  then  in  <'ontroversy.  No  seizures  had  then  been  made  in  the 
Xorth  racifn^  (Jceaii.  And  these  statements,  as  to  tin'  area  of  conten- 
tion, were  madequite  naturally  in  view  of  the  fact,  plainly  disclose<l  by 
the  evidciice,  that  Mr.  IJlaincs  at  (tne  time  and  before  the  facts  in  con- 
nection with  scid  life  in  IJcring  Sea  werci  fully  developed,  was  of 
opinion  that  a  /on(?  of  LM)  marine  leagues  annuivl  the  I'ribilof  Islands, 
within  whii'h  ])elagic  sealing  should  hv  i)rohibited,  would  be  all  that  was 
nect'ssary  in  order  to  jneserve  these  fur  seals  fiom  extermimition. 

Some  stress  is  also  laid  on  the  I'act  (hat  the;  uioiIks  rirciKll  lor  IS'.U  and 
tli!>t for  l.S!»2  oidy  related  to  Ueiing  Sea;  and,c(>nsequently, it  is  argued, 
the  two  governments  did  not  c<>iitemi)la(e  regulations  applicable  to  the 
Northern  i'acilie  Ocean.  Those  who  so  argue  forget  that  the  modus 
rinndi  tor  1S!>1.  was  not  signed  uidil  -lune  lo,  ISDl,  by  which  time  the 
scaling  vessels  had  all  left  for  the  sealing  groumls,  and  a  large  nundxu-, 
if  not  the  greater  part,  of  the  fur  seals  had  then  ])asscd  from  the  North 
raeitie  Ocean  into  liering  Sea,  and  probably  reached  their  breeding- 
grounds  on  the  Pribilof  Islands.  In  resi)eet  to  the  modus  virendi  for 
1S!)L*  it  need  only  be  said  that  Mr,  Ulaine  endeavored  to  have  it 
extended  to  tin?  North  Pacilic  Ocean  as  well  as  to  Uering  Sea.  lie 
was,  no  doubt,  moved  to  this  course  by  the  fact  that  the  two  Govern- 


|i'! 


incuts,  as  early  as  Dcccinbor  18,  1S!M,  liad  sl<;no(l  tlio  toxf  of  tho  arti 
ch's  that  \v('i(i  to  yo  into  \hii  treaty,  tliorcal'tt'r  to  l>c  put  in  t'onn,  and 
by  one  of  wliicli  art  itics  it  was  rcfiniictl  I  Iiat  llic  rc^'iilations  picscrihcd 
by  tln'  aibitratois  should  liMik  to  tliP  proper  protection  and  ])reservi»tion, 
not  sinii)ly  of  tiie  fur  seals  in  llcrin;,'  Sea,  itiit  sncli  as  iiabitualiy 
resorlcd  to  that,  sea. 

lie  was  also  aware  of  tlio  fact  that  as  early  as  .Tune  1I,lS()l,in 
;:ivinj;' assnraiire  tliat  lie  would  unite  in  the  appointment  ofa.loint 
('onmiission  to  ascertain  what  measures  wer<^  necessary  for  the  preser- 
vation of  tiu'se  fur  seals,  tlu^  President  had  distinctly  iid'ornied  the 
r»ritisli  Minisrer  that  ade(piate  measures  to  tlmt  end  "  should  end)r.ive 
the  wh(»I(^  (tf  Uerin;^'  Sea  and  ])ortions  of  the  Noith  I'acilic  Ocean." 
So,  in  his  letter  to  Sir  .Iidian  Pauiu-elote  of  I-'ebiiiary  L'l",  isim,  before 
the  tioaty  was  si;uiied.  !\Ir.  IMaine,  referiiui;'  to  the  i)roposed  mixliis 
rirouii  for  1S'.»L*,  said:  "If  Her  Majesty's  (iovernnient  would  make  her 
ellbrts  most  etfeetive,  the  sealinj;  in  the  \orth  Pacifur Ocean  should  bo 
forbidden;  for  tiicre  the  sliiuj-htei-  (»f  the  mothers  heavy  with  younj;'  is 
f;reatest.  Tliis  would  recpiire  a  notice  to  the  larj^e  nund)er  of  sealers 
who  are  prepariu.n'  to  yo  forth  fVom  I'ritish  Cobunbia.  The  iiuiidier 
is  said  to  be  ;.;reater  than  ever  before,  and  without  any  law  to  rej{iilate 
the  killin.i;'  (»f  seals  the  d"struction  will  be  immense.  All  this  su^ifjests 
tiie  need  of  an  elVecti\'e  moihifi.  Iloldinj;'  an  arbitration  in  regard  to 
the  riiihtful  mode  of  takiiii;,-  seals,  while  their  destruction  o-oes  forward, 
would  be  as  if,  while  an  arbitration  to  th<^  title  of  land  were  in  proyi-ess, 
«»ne  i)arty  should  remove  all  the  tind)er."  iMr.  Blaine^  would  not  have 
sus'!4'('sted  that,  pendin-;'  the  arbitration,  tlu^  modus  for  lS!»2bemade 
ap]»licable  both  to  liciiuf;'  Sea  and  the  Xorth  Pacific  Ocean,  if  he  had 
not  sui)posed  that  the  treaty  which  he  was  about  formally  to  conclude 
on  behalf  of  his  (rovernment.  invested  the  Arbitrators  with  authority 
t(»  establish  rej;ulations  api)licable  to  all  the  waters  traversed  by  these 
seals  in  their  mi.nration  routes  from  and  to  the  Pribilof  Islands.  Two 
days  after  wiitinj;'  the  letter  last  referred  to,  Mr.  Blaine  comnuinicated 
to  Sir  .lulian  rauneefote  acopy  of  a  telegram,  that  day  received  by  him 
fnnn  the  United  States  consul  at  Victoria,,  in  relation  to  the  large 
number  of  sealing  vessels  about  to  sail,  and  said:  "  I  think  from  this 
you  will  see  that  if  we  do  not  come  to  an  understanding  soon,  there 
will  be  no  need  of  our  agreement  relating  to  seals  in  the  North  Pacilic 
or  in  the  r.ering  Sea."     (T.  S.  (Jtixe,  Vol.  /,  App.  .V.T.?-/. 

Sir  Julian  I'auucelbte  leplying,  under  date  of  February  28,  1S92, 


29 


to  Mr.  r.liiiiM''s  not*' (tf  I'dmiary  HI.  irferitMl  to  tlic!  stiitciiiciit  of  tlio 
laltci  that  ''if  llcr  Miijcsty's  (Invt'iiiiiiciit  would  iitukc  lliiii'  fllni  ts  most 
j'lVi'flivc  (Im^  sraliiij;  ill  tlic  Xoitli  i'arilic  ( >rcaii  sliuiild  lu^  loihitlth-ii." 
If,  as  is  now  <!oiiU'ihU'(1,  tlic  treaty  tlii'ii  aWoiit  to  ho  si;iii('i|,  ami 
wliicli  \\a.>.  si;;iir(l  tlic  next  day,  (IM  not  contt'iiiplatt'  r(';;iilalioiis  lorllic 
prcstM'vation  of  tlifsf  liir  seals  while  Ihey  were  in  the  North  I'aeilie 
Oeeaii  on  their  mi<;ralion  routes,  it  xNoiihl  have  lieen  easy  I'ur  tiie  Hiit 
isli  Minister  to  state  that  I'aet  as  a  eoiieliisive  reason  why  Wn' nnxhis 
cii'CHili  lor  IS'.tl.'  siioiild  only  apply  to  iSeriii^'  Sea.  ISiit  no  siieii  rea- 
son was  assij-iied  lor  the  reiiisal  of  the  Urilisli  ( io\ciiiineiit  lo  exleiid 
the  iiuhIkh  for  that  year  to  the  North  I'aeilie  ( )eeaii.  The  I  iiited  States 
Ciovernmeiit  was,  unfortunately,  in  such  luiidition  at  that  time,  in 
respect  to  tlu^  arbitration,  that  it  was  compelled  to  aci-ept  a  tiiotlits  for 
ISIL',  a|)i>lieabl«  only  to  IScriiij;  Sea,  or  leave  both  that  sea  and  the 
North  I'aeilie  Ocean  entirely  oi»en  to  pela;iic  sealin.^'  pt'iidinj;'  tlu'  arbi- 
tration. 

Xotwithstan<linj![  the  distinct  declaiation  iiiad»Mothe  United  Stales 
by  the  British  (loveriinu'iit,  tlirouf;h  its  representalive  at  Washinf-ton, 
that  "the  sole  object  of  the  ne^'otiat ion  is  the  jneservation  of  tlu^  fur 
seal  species  for  the  lieiuilit  of  mankind,  and  that  no  considerations  of 
advantajje  to  any  i)artieuhir  nation,  oi-  of  benelit  to  any  private  inter- 
est, should  enter  into  the  (piestion;"  notwithstandinj;-  the  explicit 
assiirauee,  ffiveii  by  the  Marquis  of  Salisbury,  that  Her  Majesty's  Gov- 
ernnient  "always  have  been,  and  are  still,  anxious  for  tlie  arraiif^ement 
of  a  convention  which  shall  jirovide  whatever  close  time  in  whatever 
localities  is  necessary  for  the  preservation  of  the  fur  seal  species;"  and, 
notwithstandinji' the  express  Injunction  of  the  treaty  that  the  Arbitrators, 
upon  tindiny' the  concurrence  of  Great  I  Jritaiii  necessary  to  the  establish- 
ment of  regulations  "for  the  [iroper  protectitm  and  i)reservation  of  the 
fur  seal  in,  or  habitually  resortinj;'  to,  the  Jk'riii;^-  Sea,"  shall  "<leter- 
miiie  what  concurrent  regulations  outside  the  Jurisdictional  limits  of 
the  respective  governments  are  necessary,  and  over  what  waters  su(;h 
regulations  should  extend,"  the  contention  now  by  Her  Majesty's  Attor- 
ney General  sind  his  learned  associates,  is  that  the  Tribunal  is  without 
authority  or  Jurisdiction,  under  the  treaty,  to  prescribe  regulations 
applicable  to  the  Iforth  Pacilic  Ocean,  or  any  regulations  which  in 
terms,  or  by  their  necessary  operation,  will  re:sult  In  the  prohibition  of 
])elagic  sealing.  It  is  contended  that  no  such  power  can  be  exerted 
by  this  Tribunal,  even  if  the  Arbitrators  lind  from  the  evidence  that 


80 

this  r:i(^e  of  aiiim:ils  ran  only  ln'  properly  proti'i'tcd  uimI  jn'cst'ived  by 
flu;  iiWsoliur  cfssiitioii,  iliiriii;;'  tlie  scaling;  .season,  of  iIh^  Inintin;;' and 
fakin;,'  of  tlie.s(^  riii-seals  in  tli(>  waters  iiotli  of  I'.erin;;  Sea  an<l  the 
Nortii  l'a<-ilie  Ocean  traversed  l)y  Mieni  outside  the  jurisdictional  limits 
of  the  respective  fi'overnnu-nts. 

Theso  tw<»  contentions  are  opposed  l>y  the  Hnited  States,  which 
insists  that,  according;"  to  the  evidenct*,  the  continuance  of  pela^'ic  s«'al- 
injj;  in  the  open  waters  either  of  llerin;;'  Scaor  of  the  Northern  I'acillc 
Ocean.  durin<;-  the  months  of  the  year  wlien  these  seals  may  be  taken, 
iH  absolutely  certain  to  brin^  about  the  e\t«'rmination  of  the  race  in 
the  coiirsi!  of  a  few  years;  and  that  uiub-r  the  |M»wer  to  <leterniine  the 
ri;;hts  of  tlie  <'iti/.cns  or  subjects  of  the  two  <;ovei  nmeiits,  as  lenards 
tlm  takinj>-of  fur  seal  in,  or  habitually  resortin;^  to,  iJcrin^-  S<'a,  and 
to  prcsciibe  concurrent  rej4uIations  for  the  proper  protection  and  pn^ 
servation  of  such  seals,  ami  t(»  declare  over  what  waters  such  re;;ula- 
tioiis  shotdd  extcml,  it  is  c(unpetent  for  this  Tiii)uual,  aiul  is  its  plain 
duty,  under  the  treaty,  to  prescribt;  regulations  lookiii;;  to  a  proli  'i- 
tion  of  pelayic  scaliu};"  in  any  waters  outside  the  jurisdictional  li  is 
of  the  respei'tive  f^overnnuMits  which  are  traversed  by  these  seals  in 
their  regular  semiannual  nii<;ration  from  an<l  to  the  I'ribilof  isliimls. 

In  Ininmuiy  with  tlie  views  u[>on  re;^iilatioiis  which  the  counsel  for 
(ireat  JJritain  present,  regulations  have  been  submitted  in  i)ehalf  of 
ller  Ibitannic  JNlaJesty,  wliich,  if  api)roved,  would  establish  a  zone 
of  L'O  miles  around  tiie  I'ribilof  Islands  within  which  uo  seal  huut- 
iiij;'  shall  be  permitted  at  any  time,  nor  rilles  iu)r  nets  used  by  sealers, 
and  a  cli)sed  season  from  tiie  15th  Septendjcr  to  the  1st  July  lor 
Beriny  Sea.  Umler  such  re<;ulations  pelagic  sealing  could  be  car- 
ried on  without  restraint,  and  with  shotguns — confessedly  a  destruc- 
tive, if  not  the  most  desti  active  mode  of  taking  seals — iu)t  only  in  the 
I^orth  Pacific  Ocean  <luri  g  the  entire  season,  when  seals  can  be  taken 
in  that  ocean,  but  in  Uci'  <j:  Sea  outside  the  proiiosed  zone  of  UO  miles 
arouiul  I'ribilof  islands  \    tween  .luly  I  ami  September  15. 

Tlie  regulations  suggest  i,  in  behalf  of  the  United  States,  call  for  a 
prohibition,  during  the  ei  jreyear,  of  [)elagic  sealing  in  all  the  waters 
of  Bering  Sea  and  of  the  North  L'acilic  Ocean,  outside  the  jurisdic- 
tional limits  of  the  two  Governments,  north  of  the  thirtylitth  degree 
of  noi'th  latitude,  and  east  of  the  one  hundred  and  eightieth  meri- 
<liau  of  longitude  from  (Ireenwich.  These  regulations,  it  is  admit- 
ted, cover  all  the  waters  habitually  traversed  by  these  fur  seals  iu 


81 


served  by 
lilting'  iiiid 
:i  ami  tli<' 
Diial  liiiiitH 

h's,  wliirh 
'liif^if  scal- 
I'vu  I'acilic 
'  Im'  taken, 
li(>  race  in 
crniinc  the 
as  ie;;ai'iU 
<f  S«'a,  and 
n  and  pie- 
leli  ir;;ula- 
is  its  plain 
I  a  [)i(»li'')l- 
onal  li     iM 
se  seals  in 
lot'  Islands, 
connsel  lor 
I   l.ehalf  of 
ish  a  /(»ne 
seal  liunt- 
l»y  seaUns, 
July  for 
Id  be  ear- 
a  destrue- 
)nly  in  tlic 
I  be  taken 
>f  20  miles 

call  for  a 
the  waters 
p  jurisdic- 
itU  degree 

ieth  meri- 
|is  ad  nut- 
seals  iu 


tlieir  migration  ront«>s  rrom  and  to  tlie  Piibilof  Islands,  an<1,  if  ap- 
|iin\ed,  would  result  in  the  proliiliitimi  praidieally  of  all  liuntin;^  and 
takinji  of  these  seals  oulsidt;  of  territorial  waters. 

.Mu(;h  was  said,  in  argmnent,  as  to  tln>  authority  of  the  riibntnil  to 
presi-ribe  regulatictns  that  wo(dd  entirely  prohibit  pelanie  sealing;  dur- 
ing' the  months  in  each  year  wln-n.  by  reason  of  the  weather  and  I  ne 
eiindition  ot'tlie  seas,  the  huntin;;  and  takin;;:  of  seals  is  im|)raeti«-al>le. 
file  Ibitish  t'ounsel  contended  that  it  is  beyond  the  i»ower  of  the  A  rbi 
tralors  to  prescribe  regidati(tns  of  that  character.  'I'hey  argin-d  that 
ttie 'rril)nnal  could  not  <lo  indirectly  what  they  could  not  do  directly; 
that  |)rohibition,  in  terms,  or  by  th(>  necessary  operation  of  rej^idat ions, 
is  not  re;;'»iIation ;  that  the  power  to  regulate  is  not  a  power  to  prohibit. 
This  view,  it  may  be  observed,  would  place  it  beyond  the  power  of  this 
TriiuMial  to  prescribe  such  regulations  as  those  di'cidcd  upon,  provi- 
si(»nally,  in  ISSS,  between  the  diplomatic  rt'presentatives  of  (lieat 
Ibitaiii,  the  Iniitcd  States,  and  Ifussia.  as  a  basis  of  negotiation, 
mimely  (to  use  the  wcu'os  of  Lord  Salisl»ury),  ''that  the  space  to  ln^ 
covered  by  the  pro|)osed  <'ouveuti(»ii  should  be  the  sea  between  Anu'rica 
and  K'ussia,  ii(mMi  of  th<'  Huty  seventh  «legrce  of  latitude;  that  the 
close  time  sliould  extend  from  the  l."»th  Ajtril  to  the  1st  Novend>er; 
that  during  that  tinui  the  slaughter  of  all  seals  should  be  forbidden." 

When  enlbrcing  the  vi(^w  last  stated,  counsel  asked  us  wlu'ther  a 
]»nwer  given  by  the  legislative  departnu'Ut  to  a  nuinicipal  corporation  to 
regulate,  within  its  limits,  tlu^  sale  of  ardent  spirits  woidd  give  to  such 
corporation  authority  to  jirohibit  all  sales  of  sut-h  spirits.  Perhaps 
not.  J{ut  the  case  put  does  not  meet  the  om*  befor<(  the  Tribumd.  A 
legislative  einictment  of  the  kind  referred  to  would  show  u|>on  its  lace 
an  intention  to  perndt  some  sales  of  ardent  spirits,  under  regulations 
to  be  prescribed  by  the  municipid  corpoiatitui.  It  ndght  well  b(!  that 
a  prohibition  of  all  sales,  by  refusing  all  licenses  to  sell,  would  in  the 
case  supposed,  defeat  tlit^  intention  of  the  legislature.  The  ride  of  inter- 
pretation which  has  been  invoked  has  no  application  to  the  present(;ase. 
If  the  treaty  empowered  this  Tribunal  to  rn/iddti'  pelagic  sealing  it 
could,  not  unreasonably,  be  ccmtended  that  the  two  (lovernments  had 
no  purpose  to  prohibit  altogether  and  under  all  circumstances,  the 
hunting  of  fur  seals  iu  the  o|>en  seas,  but  only  to  authorize  the  regula- 
tion of  that  particular  mode  of  taking  these  aidmals.  The  power  given 
is  to  prescribe  such  concurrent  regulations  "outside  the.jurisdicticuial 
liudts  of  the  respective  Governments"  as  may  be  necessary  "for  the 


32 

in'opor  protcclion  iiiid   prosciviilioii  ol'  tlic  I'li!'  scul   in,  or  li:\1»itn;ill; 

it'stii  I  iiii;- lo.  tlif  llciiii,:;' Scii,'' iiiid  to  (h'cliii'i xcr  wlinl    wiitcis  siifl 

ri'jiiiliititHis  .slioiil<l  cxft'iid."  'I'lic  end  lo  he  ;i< cniiiplislKMl  is  I  In-  prop»'i 
pidlctlioM  iUitl  pi«'.scrv;il  inn  ol' t  lie  seals  wiildi  liahil  iially  rcsitil  tolli; 
sea.  ("Icaily  a  icjiiilalioii  wliicli  (lid  iiol  lodk  lo  (Iial  end  would  la 
slioil  (if  wlial  tli(^  treaty  coidciiiplatcd.  Tiic  plain  duly,  tlicn'lorc 
of  tliisTiiimnalis  to  in'ovitlc  by  ('(MH'iirM'iit  i«  nidations  tor  (he  prcs 
crvatioii  of  tiii'sc  aniiiials,  if  reji'idatioiis  of  that  ciiaiactcr  arc  iictcs 
saiy  lo  acc<iiii|»lisli  siirli  a  rcsidt.  And  tliat  duty  can  he  pcrfoi  iiicd  liy 
means  of  rci;ulations,  wlueli  tlu^two  (!(t\ crnnieiits  aic  niider  solemn 
olili.ualioii  to  res[tect  and  to  enl'ore*',  against  llieir  respeelive  citizens 
(»r  >nl»Jects. 

I  will  add  tliat  if  '  is  Tribninil  is  witlioiit  jtower  to  picscrilx'  siicli 
regulations  as  ai'e  necessary  foi' I  lie  proper  pr(tteelion  and  i»reser\a 
lion  of  lliis  race  of  animals,  then  the  residl^  of  ils  |>roi'eedin.ns  can 
n(»t  possibly  Ite,  as  both  countries  intended  it  should  be,  ''a  full,  per- 
fect, and  linal  settlemenf  of  all  the.  (pu'st ions  refeired  tntlie  Arbitra- 
tors." It  is  mere  play  ui)on  words  to  say,  in  ies|»ecl  to  this  treaty,  that 
prohibition  is  not,  re,<;ulation,  ami  that  rej^ulat  ions  or  rides,  calliuj;- in 
evpress  words  or  by  their  oi)eration  lor  a  prohibition  ot'  jieiauic  sealinii', 
are  beyond  the  powers  niven  to  this  Tribunal,  eveu  if  it  a|tpearcd 
that  re'4ulali(»ns  of  that  character  arc  al>s(»luttdy  lU'cessary  to  present 
the  extermination  of  the  fur  s(>a!s  freipieidiuii' the  I'ribilof  Islands.  The 
uninifest  result  ol  this  interpret  at  ion  of  the  treat  \'  is  that  while  the  Tri- 
bunal may  prescribe  reijulations  for  the  i)roper  prolecl  ion  anil  preserva- 
tion of  these  animals,  the  busiuessof  takini;'  them  in  the  hiiili  seas  may 
still  be  carried  on  even  thoii^u'li  it  should  inxohc  the  destruction  of  tho 
species.  Can  anyone  belie\e  that  (ireat  I'lritain  would  lia\e  asked  tho 
I'nited  States  to  so  stultify  itself  as  to  sij;n  a  treaty  which,  either  in 
words  <u'  by  necessary  implication,  would  have  adnutted  of  such  a 
rt'sult  .'  Does  anyone  believe  that  a  treaty  rendering- such  a  result  pos- 
sible would  have  l)een  sij>;ned  by  any  diplomatic  repi'eseutativt^  of  the 
I'nited  States,  or  wouhl  have  been  approved  by  its  President  or  by  any 
member  (»f  tho  Senate  of  the  United  States? 

I  express  at  this  time  no  opinion  as  to  what  regulations  are  in 
fact,  ami  upon  a  view  of  all  the  evidence,  neccssaiy  to  the  pro])er  pro- 
tection and  preservati<Hi  of  those  fur  seals.  Nor  do  1  ask  the  Tribunal 
n(»w  to  make  any  declaration  upcui  the  wei,i;lit  of  the  evidence  toucli- 
iiig  that  or  any  other  issue.     1  am  without  k'ntwledge  of  the  views  of 


iciil  hi,  or  li;>1titii;illy 
CI'  \vli;i(  wiilcis  siicli 
iiplislicil  is  llic  |ii<)|KM' 
1)ilii:ill,v  ifsoi'l  to  lliiit 

lli:if  t'lid  woiilil  I'iill 
)l;iiii  duly,  I  licicrun', 
iliitioiis   lor  |Im>   prcs 

(•ii;ir;icl<'r  iirc  iifccs 
•  (Mil  !><■  i>('ii'oi'iii('«l  l»v 
Ills  lire  iiiidt'i-  solcinii 
ir   i«'si>i'(i  ivc  cili/.ciis 

,V('r  (o  prcscrilx'  siicli 

('(■lion    and    prcscis  a 

its  pr(K'('('diit<;s  can 

lioiild  be,  "  a  lull,  pcr- 

It'ircd  to  tlic  Arhitiii- 

I'ci  to  rids  treaty,  tliat 

lis  or  rules,  calliiif;'  in 

ion  of  pehiuic  sealinu', 

excn  if  it   appeared 

necessary  to  |»re\('iif 

l'ril)ilof  Islands.  'I'lie 

is  lliat  wldle  the  Tri- 

leclion  and  preserva- 

iii  the  iiinii  seas  may 

le  destruction  of  the 

onld  lia\('  aski'd  tlie 

ealy  which,  either  in 

admitted    of  such  a 

nj;-  siicli  a  result  pos- 

cprcseiitative  of  the 

President  or  by  any 

regulations  arc  in 

ly  to  the  projx'r  pro- 

o  1  ask  the  Tribunal 

the  evi<lence  toueh- 

L'diic  of  the   views  of 


i\ 


i 


33 

the  Arbitrators  upon  tho  various  questions  of  rij^ht  or  issues  of  fa(!t 
to  be  detcnuii  jd  by  them,  and  f  ask  no  expression  of  opinion  toueh- 
iu};;  any  of  those  questions  in  advance  of  tluur  beinj;-  reached  in  tho 
regular  course  of  our  proeeedings  in  conferen(;c.  JJut  as  indicating 
the  grounds  upon  wiiieh  a  declaration  is  asked  at  this  time,  as  to  tlui 
powers  of  this  Tribunal  undtsr  tho  treaty,  I  may  say  that  there  is  a 
large  amount  of  evidence  in  the  record  tending  to  show  that  the 
hunting  and  taking  of  these  fur  seals,  according  to  the  methods  now 
practiced  by  iielagic;  sealers  in  tho  open  waters  either  of  the  liering 
Sea  or  of  tho  North  Pacific  Ocean,  if  continued,  will  certainly  result  at 
nodistant  day  in  the  (tompleto  extermination  of  the  laee.  My  purpose 
is  only  to  show  that  the  power  to  proscribe  r<'gulati(Mis,  which  expressly 
or  by  their  practical  operation  will  prohibit  pelagic  sealing,  was 
intended  to  be  conferred  and  has  boon  conferred  by  the  treaty,  with 
respect  to  tho  waters  both  of  Boring  Sea  and  of  the  North  l*a<!ilic 
()i;ean,  traversed  by  these  fur  seals  in  tiieir  going  from  and  returning 
to  tho  L'ribilof  Islands. 

This  Tribunal,  I  insist,  has  not  been  constituted  for  the  purpose  of 
conserving  the  interests  of  the  (Janadian  and  .Vmerican  sealers  who, 
within  the  past  ten  years,  have  devised  a  mode  of  taking  these  fur 
se;ils  in  the  open  seas,  by  means  which,  all  concede,  are  destructive, 
because  not  admitting  of  any  discrimiuatu>u  as  to  sex,  nor,  still  less,  of 
any  discrimiiiition  biitweeu  females  that  are  heavy  with  young  and 
tlioso  that  have  not  bei;nimi)regiiatod.  We  are  not  hero  with  authority 
to  make  an  award,  siniply  by  way  of  compronnse,  so  that  each  side  in 
this  dispute  may  have  an  opportunity  to  say  that  it  has  not  been 
entirely  unsuc<;ossful  in  its  contentions  before  this  Tribunal.  Our 
authority  has  a  nuicli  wider  tield  of  operation.  If  the  rei)oated  avowals 
of  the  two  nations,  who  seek  an  amicable  settlement  of  their  dilferences 
by  moans  of  arbitration,  are  not  to  be  wholly  discredited,  we  are  lieio, 
in  their  names,  and  by  their  Joint  authority,  to  protect  and  i»reserve 
this  race  of  animals  from  extermination  if  wo  lind  that  coniairrent 
regulations  to  that  end  are  ne(;essary.  A  failure  or  refusal  to  oxerciso 
the  power,  plaiidy  given,  to  proscribe  such  regidati(»ns  as  are  neces- 
sary to  prevent  the  extermination  of  this  race  of  useful  animals,  will,  in 
my  Judgment,  wholly  defeat  the  principal  object  for  which  this  Tribunal 
was  created. 

Matters  involving  the  Jurisdiction  and  i)ower  of  the  Tribunal  to  deal 
with  every  aspect  of  this  case,  us  it  may  attlict  the  BUpreuie  object  of 
lldl)L» 3 


31 


the  protection  and  i)rescrvation  of  thciserur  seiils,  slionM,  I  submit,  bu 
p:issu<l  npon  before  the  Arbitrators  enter  upon  tlie  consideration  of  the 
several  questions  of  right  submitted  for  deternunation. 

The  dnty  of  tliis  Tribunal  to  prescribe  reguUitions  arises  when  the 
deternunation  of  tlie  questions  submitted  to  us, ''as  to  tlie  exclusive 
jurisdiction  of  the  United  States,''  leaves  the  subject  in  siudi  position 
•'tiiat  tlie  (MMHMurencie  of  (Ireat  I'.ritain  is  necessary  to  the  estid)lish- 
nu'ut  (d'  rej;ulations  for  the  proper  protection  and  preservation  of  the 
fur  seal  in,  or  habitually  resorting'  to,  tlie  J»ering  tSea."  Such  are  the 
ex|>ress  words  of  Arti(de  Vll.  If  tlie  United  States  has  not  such  exclu- 
sive Jurisdiction — that  is,  such  sovereign  i)o\ver — as  enables  it  to  enact 
laws,  binding  upon  all,  whether  citizens  of  the  United  States  or  sub- 
jects of  otiier  countries,  for  the  protection  and  preservation  of  these 
seals,  in  all  the  waters  both  of  Heriug  Sea  and  of  the  North  Pacific  Ocean 
traversed  by  them — and  no  such  claim  has  been  preferred  before  us — 
then  we  know,  at  this  time,  that  the  concurrence  of  Great  Britain  is 
necessary  to  the  estiiblishment  of  regulations,  whatever  conclusion  may 
be  reached  upon  the  issue  as  to  property  and  protection  presented  by 
the  lifth  question  of  Article  VI. 

If  it  l)e  held  that  the  United  States  has  no  right  of  property  in 
these  seals,  and  no  right  to  i)rotect  them  when  found  outside  tlie  ordi- 
Uiuy  three-mile  limit,  then  tlui  duty  to  prescribe  concurrent  regulations 
becomes  manifest.  l>ut  regulations  of  that  cluuiicter  are,  in  my  judg- 
ment, necessary  though,  perhaps,  not  equally  so,  for  the  proper  ju-otec- 
tion  and  preservation  of  the  seals,  if  the  Tribunal  holds  that  such  right 
of  property  or  protection  does  ai)pertain  to  the  United  States;  for,  in 
that  case,  the  only  means  v.hich  the  Government  of  that  country  could 
employ  would  be  those  which  the  law  permits  to  individual  owners 
of  juoperty  for  its  jjiotection.  P.ut  that  woidd  be  inadeijuate  protec 
tioii,  w  itliout  the  c(mcurreiu'e  of  Great  Uritain,  manifested  by  such  leg- 
islation as  would  bind  its  subjects  wherever  they  may  be,  and  compel 
them,  under  pr(q)er  penalties,  to  resi)ect  any  right  of  pro[ierty  or 
l>rotection  accorded  to  the  United  States  by  the  award  or  decision  of 
this  Tribunal,  So  that  it  is  certain  that  we  must  come  to  the  subject 
of  regulations  for  the  proper  protection  and  preservation  of  this  race 
of  animals. 

if  the  Arbitrators  believe  that  the  race  will  be  soon  exterminated 
uidess  pelagic  sealing  is  prohibited,  in  both  Bering  Sea  and  the  North 
rucilic  Ocean,  durin;y  all  the  months  when  they  nuiy  be  takeu  in  the 


* 


■'I 

i 


35 

open  waters,  but  that  the  Tribunal  is  witliout  power,  under  the  treaty, 
to  prescribe  regulations  of  that  eharaeter,  is  it  not,  as  I  have  heretotbio 
sunj^ested,  our  duty  to  suspen<l  further  ai^lion  lor  a  tiuu',  in  order  that 
the  two  (lovernnients  may  have  an  opi^ortunity  to  so  amend  the  treaty, 
under  which  we  are  [)roeeedin<^,  as  to  enable  us  to  preserve  this  raee 
lioni  externunation?  JSliall  we  i^niore  the  fact  that  both  Cioverninents 
have  protested,  in  every  form  of  language,  that  they  desired  the  i)res- 
ervation  of  these  animals  without;  reference  to  considerations  of  profit 
or  advantage  to  any  nation  or  t'O  individuals  of  any  mition  ?  {Shall  it 
be  assumed  that  either  of  the  great  nations  before  us  wish  the  Tril)unal 
to  eon(dnde  its  labors  and  adjourn  without  preseribnig  concurrent  regu- 
lations that  are,  in  fact,  necessary  for  the  i)reservation  of  these  seals? 
As  these  iiuestions  touching  tlie  competency  of  the  Tribunal  to  deal 
with  the  subject  of  the  preservation  of  these  animals  have  been  dis- 
tinctly raised  by  (ireat  Britain  and  nuist  be  decided,  1  submit  that  they 
should  be  examined  and  decided,  at  the  threshold  of  our  proceedings 
in  conference. 
Senator  Morgan  authorizes  mo  to  say  that  ho  concurs  in  this  oi»inion. 

[At  tilt)  close  of  till)  ili.scu.ssioii  Soiiiitor  Morgiui  ollVn'<l,  as  a  8iil)slitiite  lor  tlic  mo- 
tion ol' Mr,  .liistict!  llarliui,  tlio follow iiiy:  •''rhisTribimal  ol' Arliiliatiou  is  ciiijuiw- 
iTfd  l)y  llio  Treaty  of  l-'cliriiary  2'J,  181t2,  botwi-oii  tlio  tluitcd  .Slates  and  (ireat 
liiitiiin,  to  (lotermine  what,  eoiieiirreiit  reguliitioii.s  ar(^  projier  to  \h\  a(lo|)tcci  and 
enforced  l)y  tlie  action  of  tlie  resiieetivc  j^overnnients,  a|piilical>li!  to  their  rcspeetivo 
citizens  or  snlijt^cts,  ontsido  of  tlicir  resiicctive  territorial  limits  and  outside  Oi' 
IScrini;  Sea,  for  tiio  protectiini  and  prescr\iition  of  fur  seals  in,  or  haliitnally  rcsort- 
iii^  to,  lierinjj  Sea."  This  substitute  was  iiccei)ted  by  Mr.  Jusliee,  Harlan,  and  was 
adopted,  one  Arbitrator  "oting  in  the  uegiitive.  It  was  agreed  tiiat  the  considera- 
tion of  the  snbjcet  embraced  in  the  second  branch  of  the  original  motion  of  Mr. 
.Inst ice,  Harlan  l)e  p('st[)oned  until  the,  'I'ritinnal  should  reach  the  subject  or  regula- 
tions in  oriler,  .'ind  should  determine  that  reg'ilations  were  nnide  necessary  by  the 
conclusions  reached  upon  otbur  t^ucstiuus  named  lu  the  treaty.] 


PART  n. 

THE  MERITS  OF  THE  VARIOUS   QUESTIONS  SUBMITTED  TO  THE  TRI- 
BUNAL FOR  DETERMINATION. 

1. 

OENERAIi  STATErriEIVT  OF  THE  FACTS  OVT  OF  ^THICH  THR 
PRESENT  COIVTROVERSY  RETWEEIV  THE  TWO  IVATION8  AROSE, 
AND  THE  HISTORY  OF  THE  NECiOTIATIONS  RESUIiTlNO  IN  THE 
TREATV  OF  FERRVARV  ti9,  1S04. 

Before  entering  upon  the  examination  of  tlie  important  questions 
submitted  for  determination,  it  will  be  well  to  recall  the  general  course 
of  the  negotiations  that  preceded  the  nmking  of  the  treaty  under  which 
we  are  proceeding,  and  the  principal  facts  out  of  which  the  present 
controversy  between  the  two  governments  originated.  Some  of  these 
facts  have  already  been  stated  by  me  when  considering,  at  a  former 
session  of  this  Tribunal,  the  question  of  its  competency  to  make  regu- 
lations applicable  to  the  North  Pacific  Ocean,  and  which  also,  in  terms, 
or  by  their  necessary  operation,  would  put  an  end  to  pelagic  sealing  in 
the  waters  traversed  by  the  Pribilof  seals.  But  it  is  well,  even  at  tlie 
risk  of  repetition,  to  restate  them  in  this  connection. 

The  controversy  had  its  origin  iu  certain  seizures  of  vessels,  alleged 
to  belong  to,  or  to  be  iu  the  possession  or  under  the  control  of.  British 
subjects  who  wore  engaged,  at  the  time,  in  the  waters  of  Bering  Sea 
outside  of  the  ordinary  limits  of  territorial  jurisdiction,  in  hunting  and 
taking  fur-seals  which  had  their  breeding  grounds  on  the  islands  ot 
St.  Paul  and  St.  George,  two  of  the  four  islands  in  Bering  Sea  con- 
stituting the  Pribilof  group. 

The  seizures  referred  to  were  made  in  1886, 1887,  and  1889  by  public 
armed  vessels  acting  under  instructions  from  the  Executive  Depart- 
ment of  the  Government  of  the  United  States. 

The  Pribilof  Islands  are  situated  in  Bering  Sea,  latitude  57°  north, 

longitude  170°  west  from  Greenwich,  about  300  miles  from  Cape  Neweu- 

ham,  on  the  mainland  of  Alaska  Territory,  and  about  200  miles  north 

ol  the  Aleutian  Islands,  the  latter  islands  extending  several  hundred 

36 


37 


tnilos  weatwardly  Jitid  sonthwesterly  from  the  peninsnla  of  Alaska 
into  the  Pacific  Ocean.  They  were  discovered  in  178G  and  1787  by 
Gerassim  Pribilof,  a  Enssian  navigator,  while  he  was  endeavoring  to 
ascertain  upon  what  shores  the  herd  of  fur  seals  habitually  landed, 
which  had  been  observed  to  pass  once  a  year  northwardly,  and  once  a 
year  southwardly,  through  the  channels  between  the  Aleutian  Islands. 

Those  islands,  after  their  discovery,  remained  continuously  in  the 
l)()ssession  of  Kussia  until  18G7.  In  that  year  the  Emperor,  by  treaty, 
ceded  to  the  United  States  ''all  the  territory  and  dominion"  then  pos- 
sessed by  him  "  on  the  continent  of  America  and  in  the  adjacent  islands," 
and  contained  within  certain  defined  geographical  limits.  The  eastern 
limit  of  the  territory  and  dominion  so  conveyed  was  declared  to  be 
the  line  of  demarcation  between  the  Russian  and  British  possessions 
ill  North  America,  as  established  by  articles  III  and  IV  of  the  treaty, 
wliicli  will  be  hereafter  referred  to,  between  Kussia  and  Great  Britain 
of  February  (28)  IG,  1825. 

The  western  limit  is  thus  defined  by  the  treatj^  of  1867: 

"  Tlie  western  limit  within  which  the  territories  and  dominion  conveyed 
lire  contained  passes  through  a  point  in  Bering's  Straits  on  the  parallel 
of  05°  30'  north  latitude,  at  its  intersection  by  the  meridian  which 
passes  midway  between  the  Islands  of  Kruzenstern  or  Ignalook, 
and  the  Island  of  Batmanoff  or  Noonarbook,  and  proceeds  due  north, 
without  limitation,  into  the  same  Frozen  Ocean.  Tiie  same  western 
limit,  beginning  at  the  same  initial  point,  in'oceeds  thence  in  a  course 
nearly  southwest,  through  Bering's  Straits  and  Bering's  Sea  so  as  to 
])ass  midway  between  the  northwest  point  of  the  Island  of  St.  Law- 
rence and  the  southeast  point  of  Gape  Ghoukotski,  to  the  meridian  of 
172,  west  longitude;  tiience,  from  the  intersection  of  that  meridian,  in 
a  southwesterly  direction,  so  as  to  pass  midway  between  the  Island  of 
Attn  and  Copper  Island  of  the  Komandorski  couplet,  a  group  in  the 
Xorth  Pacific  Ocean,  to  the  meridian  of  193°  west  longitude,  so  as  to 
include  in  the  territory  conveyed  the  whole  of  the  Aleutian  Islands  east 
of  that  meridian." 

Tliat  treaty  further  provided :  "  The  cession  of  territory  and  dominion 
herein  made  is  hereby  declared  to  be  free  and  unencumbered  by  any 
reservations,  iitivileges,  franchises,  grants,  or  possessions  by  any 
associated  companies,  whether  corporate  or  incorporate,  Russian  or  any 
other,  or  by  any  parties,  except  merely  ])rivate  individual  property 
holders;  and  the  session  hereby  made  conveys  all  the  rights,  franchises, 


38 

itml  |>rivilo{»os  now  beloiiffiiifj  to  Russia  in  tlio  said  territory  or  doinin- 
i<in  and  appnrtcnanciis  tliereto."     (15  U.  S.  Stat.,  r».'{0.) 

'Dho  Fribilof  Islands  aro  east  of  tlio  line  tlinsdelincd  as  tlio  western 
limit  within  wliicli  are  the  territory  and  dominion  conveyed  by  liussia 
to  the  United  States. 

P»y  an  act  of  the  Conj^ress  of  the  United  States  approved  March  .3, 
IH(J!>,  the  islands  of  St.  I'anl  and  St.  G(M)rf>e  in  Alaska  were,  declar<Ml 
"a  special  reservation  for  (iovernnient  purposes,"  and  it  was  made 
unlawful  foi  any  person  to  hmd  or  remain  on  either  of  them,  ex(rept  by 
authority  of  the  Secretary  of  the  Treasury.  This  statute  was  followed 
by  an  act  approved  July  1,  1S7(),  the  expressed  object  of  which  was  to 
prevent  the  extermination  of  fuv-beariiij?  animals  in  Alaska.  The  i)ro- 
visions  of  the  acts  of  ISO!)  and  187()  are  reproductid  in  the  Revised 
Statutes  of  t!>e  United  States  of  IST.'i.  Those  sections*  show  the  extent 
of  authority  and  jurisdiction,  which  has  been  asserted  by  the  United 


"Skc.  1951.  Tilt',  liiws  of  tho  Uiiitod  States  lolatiiifi;  to  cuwttuna,  coniiiicrco,  aiul 
iiavigiitioii  arc  ext(Mi<l(!il  to  and  ovi'V  all  the  mainlands,  islands,  and  v  ^crs  of  tlio 
territory  cedod  to  tins  Uniti'd  States  by  tlio  Eiiiiioror  of  Ilussia  by  treaty  conelndcd 
at  Wasliinfjto  .  on  tlio  thirti<^th  ilay  of  Mareh,  anno  Domini  ono  thousand  oiglit 
hundred  and  sixty-seven,  so  far  as  tlio  saino  may  bo  applioablo  tliercsto, 

Skc.  1!)5().  No  person  shall  kill  any  otter,  mink,  marten,  sable,  or  fur-seal,  or 
other  I'lir-boiiriiig  animal  within  the  limits  of  Alaska  Territory,  or  in  the  waters 
thereof;  and  cA'ory  jierson  guilty  thereof  shall,  for  each  otl'onse,  be  fined  not  less 
tliati  two  hiiiidred  nor  more  than  ono  thousand  dollars  or  imprisonod  not  more  than 
six  months,  or  both;  and  all  vessels,  their  tackle,  a])])arel,  faniitnre  and  cargo, 
found  engaged  in  violation  of  this  section  sh;ill  ho  forleited.  lint  the  Secretary  of 
the  Trcnsnry  shall  have  power  to  authorize  the  killing  of  any  siuih  mink,  marten, 
sable,  or  other  fur-bearing  animal,  oxco])t  fur-seals,  uiidor  such  regulations  as  he 
may  prescribe;  and  It  shall  be  the  duty  of  the  Secretary  to  prevent  the  killing  of 
any  fur-se.il,  and  to  provide  for  the  execution  of  the  provisions  of  this  section  until 
it  is  otherwise  provideil  by  law;  nor  shall  he  grant  any  special  privileges  under  this 
section. 

Skc.  l!tr>l).  The  islands  of  Saint  Paul  and  Saint  George  in  Alaska,  are  declared  a 
special  reservation  for  (lovernment  purposes;  and  until  otherwise  provided  by  law 
it  shall  be  unlawful  for  any  person  to  land  or  remain  on  either  of  those  islands, 
except  by  tlu^  authority  of  the  Sei'retary  of  the  Treasury;  and  any  jierson  found  on 
either  of  those  islands  contrary  to  the  provisions  hereof  shall  be  summarily  removed; 
and  it  shall  bo  the  duty  of  the  Secretary  of  War  to  carry  this  section  into  ell'ect. 

Sec.  I!)(i0.  It  shall  bo  unlawful  to  kill  any  fur-seal  upon  the  islands  of  Saint  Paul 
and  Saint  fJeorge,  or  in  the  waters  a<ljaeout  thereto,  except  during  the  months  of 
. I  line,  .July,  September,  and  October  in  enrh  year;  and  it  shall  be  unlawful  to  kill 
such  seals  at  any  time  by  tht^  nso  of  firearms,  or  by  other  means  tending  to  drive 
the  seals  away  from  those  islands;  but  the  natives  of  the  islands  shall  have  the 
privilege  of  killing  such  yonng  seal  as  may  be  necessary  for  their  own  food  and 


89 


or  (lomin- 

lio  western 
.  by  Kiissia 

(1  Miireh  3, 
re.  tlecliiiJMl 

was  miide 
,  ex«M>i»t  by 
iis  followed 
hieli  WHS  to 
.  The  pro- 
lie  Revised 
7  tlic  extent 

the  United 

[)iniiun'(.'o,  iiiid 
V-  *ers  of  tlio 
ity  ('(nirliidcil 
iniiHaiul  uiglit 
p. 

1-  I'liv-seal,  or 
till)  waters 
lied  not  loss 
it  more  Mian 
and  car  "JO, 
Secretary  of 
ink,  inarteii, 
latioiis  as  lie 
le  killing'  of 
section  until 
es  under  tliis 

0  deelarod  a 
id(!d  by  law 
liose  islands, 
on  foiinil  on 
ily  removed; 
tocllect. 
>f  Saint  I'fml 
o  months  of 
iwfiil  to  kill 
iiig  to  drive 
all  have  the 
(vn  food  aiid 


States,  over  the  territory  and  waters  within  the  limits  referred  to  in 
the  treaty  of  1807. 

By  a  snbscqnentaet,  ]>assed  Mareh  2,  ISS!),  section  1!)5(!of  the  Revised 
Statntcs,  forbidding  the  killing  of  "any  otter,  mink,  niartcn,  sable  or 
far  seal,  or  other  fnr-bearing  animals  within  the  limits  of  Ahiskii  'IVrri- 
tory,  or  in  the  waters  thereof,"  was  de(!larcd  "to  inelndo  and  ajjply  to 
all  the  dominion  of  the  United  States  in  the  wateis  of  T.ering  Sea;*' 
and  it  was  mad<i  the  dnty  of  the  IMesident,  at  a  timely  season  in  each 
year,  to  issne  his  pnxrlamation  warning  all  persons  against  enti'iing 
said  waters  for  the  pnrpose  of  violating  the  provisions  of  said  section, 
and  to  cause  one  or  moi-e  vessels  of  the  United  States  to  diligently 
crnise  said  waters  and  arrest  all  persons,  and  seize  all  vessels  fonnd 
to  be,  or  to  have  been,  engaged  in  any  violation  of  the  laws  of  the 
United  States  therein. 

In  exccntion  of  the  above  statutory  provisions,  the  Secietary  of  the 


( lothins  diiriii;^  other  inontlis,  and  also  such  old  seals  as  may  he  rc(|uired  for  their 
own  clothin*^,  and  for  tlie  manufacture  of  boats  for  their  own  usi^;  and  the  killing 
in  such  cases  shall  be  limited  and  controlled  by  such  regulations  as  may  be  pre- 
scribed by  the  Secretary  of  the  Treasury. 

Skc.  lUOl.  It  shall  bo  unlawful  to  kill  any  female  seal,  or  any  seal  less  than  one 
year  old,  at  any  season  of  the  year,  except  as  above  provided;  and  it  shall  also  l)e 
unlawful  to  kill  any  seal  in  the  wat<!rs  adjacent  to  tlu;  islands  of  Saint  I'aul  and 
Saiut  George,  or  on  the  beaches,  dill's  or  rocks  where  tlicy  haul  iij)  from  the  sea  to 
remain;  and  every  jierson  who  violates  the  jirovisions  of  this  or  the  priM'cdiiig  scc- 
1  ion  shall  be  punished  for  ea(!h  oU'enso  by  a  lino  of  not  less  than  two  hundred  dollars 
nor  more  than  one  thousand  dollars,  or  by  iinprisonment  not  more  tliau  six  nioiitlis, 
or  by  both  such  line  and  imprisonment;  and  all  vessels,  their  tackle,  apparel,  :ind 
furniture,  whose  crews  are  found  engaged  in  the  violation  of  either  this  or  the  pre- 
ceding section,  shall  bo  forfeited  to  the  United  States, 

Sicc.  1902.  For  the  jieriod  of  twenty  years  from  the  lirst  of  July,  (iighteen  hun- 
dred and  seventy,  the  niimlier  of  fur-s(!als  which  may  ho  killed  for  their  skins  u])on 
the  Island  of  Saint  Paul  is  limited  to  seventy-live  thousand  per  annum,  and  the 
number  of  fur-seal  which  may  be  killed  for  tlnur  skin  upon  the  Island  of  Saint 
(ieorge  is  limited  to  twenty-live  thousand;  but  the  Secretary  of  the  Treasury  may 
limit  the  riglit  of  killing,  if  it  becomes  nectessary  for  the  preservation  of  such  seiils, 
with  such  proportionate  reduction  of  the  rents  reserved  to  the  Government  as  .uay 
be  jiroper;  and  every  person  who  knowingly  violates  either  of  the  provisions  of 
this  section  shall  be  punished  as  provided  in  the  preceding  section. 

Sec.  1963.  Wlion  the  lease  heretofore  made  by  the  Secretary  of  the  Treasury  to 
the  Alaska  Commercial  Company  of  the  right  to  engage  in  taking  fur-seals  on  tlio 
islands  of  Saint  Paul  and  Saint  George,  pursuant  to  the  act  of  the  lirst  July,  1870, 
cliapteronehnuclredandoighty-nine,or  when  any  future  similar  lease  expire8,or  is  sur- 
rendered, forfeited  or  terminated,  the  Secretary  shall  lease  to  proper  and  responsible 


40 

Treasury  liaa,  from  time  to  time,  leased  to  an  incorporated  compiiny  the 
right  to  engage  in  the  business  of  taking  fur  seals  on  the  islands  of  St. 
Viinl  and  St.  George,  under  regulations  prescribed  by  that  oHicer. 

It  was  under  this  state  of  the  law,  so  far  as  the  statutes  of  the  United 
States  were  concerned,  that  seizures  of  vessels  were  made.  The  Brit- 
ish Government  protested  against  those  seizures  as  an  unauthorized 
interference  with  the  rights  of  its  subjects  on  the  high  seas.  Its  Minis- 
ter at  Washington,  Sir  Lionel  Sackville  West,  in  a  letter  dated  Janu- 
ary 9, 1887,  and  addressed  to  Mr.  Bayard,  the  American  Secretary  of 
State,  said:  "It  is  unnecessary  for  me  to  allude  further  to  the  informa- 
tion with  which  Her  Majesty's  Government  have  been  furnished  respect- 
ing these  seizures  of  British  vessels  in  the  open  seas,  and  which  for 
some  tinte  past  has  been  in  the  possession  of  the  United  States  (lov- 


]»artic8,  for  the  best  iulvauta^^o  of  tlio  Uuitcd  Stales,  bavin};  dno  refrard  to  the  in- 
terest of  the  Govorninent,  tlio  native  inhabitants,  their  comfort,  maintenance  and 
education,  aa  well  as  to  the  interest  of  the  parties  heretofore  engaj^ed  in  trade, 
and  the  protection  of  the  fisheries,  theripht  of  taking  fur-seals  on  the  islands  herein 
named,  and  of  sending  a  vessel  or  vessels  to  the  islands  for  the  skins  of  such  seals, 
for  the  term  of  twenty  years,  .at  an  annual  rental  of  not  less  than  fifty  thonsand  ilol- 
lars,  to  he  reserved  in  such  lease  and  secured  by  a  deposit  of  United  States  bonds 
to  that  amount;  and  every  such  lease  shall  be  duly  executed  in  duplicate,  and  shall 
not  be  transferable. 

Sue.  1964.  The  Secretary  of  the  Tree  iury  shall  take  from  the  lesseesof  such  islands 
in  all  cases  a  bond,  with  securities,  in  .a  sum  not  loss  than  five  hundred  thousand 
dollars,  conditioned  for  the  faithful  observance  of  all  the  laws  and  rofinirenicnts  of 
Congress  and  the  regulations  of  the  Secretary  of  the  Treasury  touching  the  taking 
of  fur-Roals  and  the  disposing  of  the  same,  and  for  the  payment  of  all  taxes  and 
dues  accruing  to  the  United  States  connected  thei'owith. 

Six;.  1'JC5.  No  persons  other  than  American  citizens  shall  be  permitted,  by  lease  or 
otlierwise,  to  ol  I'py  the  islatids  of  Saint  Paul  and  Saint  George,  or  either  of  them, 
for  the  purpose  of  taking  the  skins  of  fur-seals  therefrom,  nor  shall  any  foreign  vessel 
be  engaged  in  taking  such  skins;  and  the  Secretary  of  the  Treasury  shall  vacate  and 
declare  any  lease  forfeit«id  if  tlio  same  be  held  or  operated  for  the  use,  beiieUt,  or 
advantage,  directly  or  indirectly,  of  any  persons  other  than  Ameiican  citizens. 

Skc.  1967.  Every  person  who  kills  any  fur-seal  on  either  of  these  islands,  or  in  the 
waters  adjacent  thereto,  without  authority  of  the  lessees  thereof;  and  every  person 
who  molests,  disturbs,  or  interferes  with  the  lessees,  or  either  of  them,  or  their 
agents  or  employ*^8,  in  the  lawful  prosecution  of  their  business,  under  the  provis- 
ions of  this  chapter,  shall  for  each  offense  be  punished  as  described  in  section  1961; 
and  all  vessels,  their  tackle,  apparel,  appurtenances,  and  cargo,  whose  crows  .are 
found  engaged  iu  any  violation  of  the  provisions  of  sections  196.5  to  1968,  inclusive, 
shall  be  forfeited  to  the  United  St.atcs. 

Sec.  1968.  If  any  person  or  company,  under  any  lease  herein  authorized,  know- 


41 

^rninoiit,  beeanso  TTor  Majosty's  (lovcrmnent  do  not  donbt  tliat  if,  on 
iiKiuiiy,  it  sliould  prove  to  be  correct,  the  Govermiient  of  tlic  United 
States  will,  with  tiieir  well-known  sense  of  justice,  admit  the  illegal- 
ity of  the  proceedings  resorted  to  against  the  British  vessels  and  the 
British  subjects  above  mentioned,  and  will  cause  reasonable  reparation 
to  be  made  for  the  wrongs  to  which  they  have  been  subjected  and  for 
the  losses  whi(!h  they  have  sustained."     U.  S.  Case,  Vol.  ],  App.,  156. 

Under  date  of  April  12,  1887,  Mr.  Bayard,  writing  to  the  British 
minister,  said:  "The  remoteness  of  the  scene  of  the  fur-soal  fisheries 
and  tlie  special  peculiarities  of  that  industry  have  unavoidably  delayed 
the  Treasury  othidals  in  framing  appropriate  rognlations  ami  issuing 
orders  to  United  States  vessels  to  police  the  Alaskan  waters  for  the 
protection  of  the  fur  seals  from  indiscriminate  slaughter  and  conse 


iiigly  kills,  or  poiiuits  to  bo  killed,  any  iiiimbor  of  seals  exceeding  the  iiiiinbor  lor 
each  iHland  in  Huh  chapter  prescribed,  Hiicb  person  or  company  shall,  in  addition  to 
the  penalties  and  forfeitures  Lerein  provided,  forfeit  the  whole  number  of  skins  ot 
seals  killed  in  that  year,  or,  in  case  the  same  have  been  disposed  of,  then  such  per- 
siui  or  cr»mpany  shall  forfeit  the  value  of  the  same. 

Skc.  19fi9.  In  addition  to  the  annual  rental  reijuirod  to  be  reserved  in  every  lease, 
;is  ]in>vided  in  section  nineteen  binidred  and  sixty-three,  a  revenue  tax  or  duty  of 
two  dollars  is  laid  upon  each  fur-seal  skin  taken  and  shippi^d  fnuu  the  ishmds  of 
Saint  I'aul  and  Saint  George  durinti;  the  continuance  of  any  leasee,  to  be  paid  into 
tlie  Treasury  of  the  United  States;  and  the  Secretary  of  tlio  Treasury  is  empowered 
to  make  all  needfnl  regulations  for  the  collection  and  ])ayment  of  the  same,  and  to 
secure  the  comfort,  maintenance,  educatioi^,  and  protection  of  the  natives  of  tlioso 
isl;inils,  and  also  to  carry  into  full  ellcct  all  the  provisions  of  this  chapter  except  as 
otlierwise  pres(!ribed. 

Sk(;.  1970.  The  Secretary  of  the  Treasury  may  terminate  any  lease  given  to  any 
person,  company,  or  corporation  on  full  and  satisfactory  proof  of  the  violation  of 
any  of  the  provisions  of  this  chapter  or  the  regulations  established  by  him. 

Sicc.  1971.  Tlio  lessees  shall  furnish  to  the  several  masters  of  vessels  emi»loyed  by 
thi'in  certified  coj)ies  of  the  lease  held  by  them  respectively,  which  shall  be  presented 
to  the  Govermneut  revenue  ollficer  for  the  time  being  who  may  be  in  charge  at  the 
islands  as  the  authority  of  the  party  for  landing  and  taking  skins. 

Skc.  1972.  Congress  may  at  any  time  hereafter  alter,  amend  or  repeal  sections  from. 
1900  to  1971,  both  inclusive,  of  this  chapter. 

Si"C.  1973.  The  Secretary  of  the  Treasury  is  authorized  to  appoint  one  agent  and 
three  assistant  agents,  who  shall  be  charged  with  the  management  of  the  seal  fish- 
eries in  Alaska,  and  the  performance  of  such  other  duties  as  may  be  assigned  to  them 
by  the  Secretary  of  the  Treasury. 

Skc.  1975.  Such  agents  shall  never  be  interested,  directly  or  indirectly,  in  any  lease 
of  tlie  right  to  take  seals,  nor  in  any  proceeds  or  profits  thereof,  either  as  owner, 
agent,  partner,  or  other  wine. 


42 


aent  spocdy  oxttMiniiiiitioii.  Tlio  hiws  of  the  rJnitcd  States  in  this 
iM'hiilf  iire  coiitiiined  in  the  Kevisei)  Stiitutes  relating  to  Ala.ska,  in  sec- 
tions 195G-1{)71,  and  have  been  in  force  for  np wards  of  seventeen  years; 
and  prior  to  tlie  seizures  of  hist  summer  but  a  single  infraction  ia  Ivuown 
to  liave  o(;curred,  and  tliat  was  promptly  punished.  The  question  of 
instructions  to  (lovernment  vessels  in  regard  to  preventing  the  iiidis 
criminate  killing  of  fur  s(m1s  is  now  being  considered,  and  1  will  inform 
you  at  the  earliest  day  ))ossible  what  has  been  decided,  so  that  IJritish 
and  other  vessels  visiting  the  waters  in  question  can  govern  themselves 
accordingly."  U.  S.  Case,  Vol.  1,  App.,  1(10.  Subsequently,  August 
v.),  1S.S7,  Mr.  r>ayard  addressed  communications  to  the  United  States 
mi II IsrcrsinFraiu'e, Germany,  Great  Britain,  Japan, llussia, and  Sweden 
and  N^orway,  in  which  ho  said:  "Recent  occurrences  have  drawn  the 
attention  of  this  Department  to  the  necessity  of  taking  steps  for  the 
better  protection  of  the  fur  seal  tisheries  in  Bering  Sea,  Without 
raising  any  question  as  to  the  exceptional  measures  which  the  ])e('uliar 
cliaract<>-r  of  the  property  in  question  might  Justify  this  Government 
in  taking,  and  without  reference  to  any  exceptional  marine  jurisdiction 
that  might  i)roperly  be  claimed  for  that  end,  it  is  deemed  advisable, 
and  I  am  instructed  by  the  President  to  so  inform  you,  to  attain  the 
desircjl  ends  by  international  coiiperation.  It  is  well  known  that  the 
unregulated  and  indiscriminate  killing  of  seals  in  many  parts  of  the 
world  has  driven  them  from  i)liice  to  place,  and,  by  breaking  up  their 
habitual  resorts,  has  greatly  reduced  their  number.  Under  these  cir- 
cumstances, and  in  view  of  the  common  interest  of  all  nations  in  pre- 
venting the  indiscriminate  destruction  and  consequent  extermination 
of  an  animal  whi(!h  contributes  so  importantly  to  the  commercial  wealth 
and  general  use  of  mankind,  you  are  hereby  instructed  to  draw  the 
attention  oi'  the  Government  to  which  you  are  accredited  to  the  sub- 
ject, and  to  invite  it  to  enter  into  such  an  .arrangement  with  the  Gov- 
ernment of  the  United  States  as  will  prevent  the  citizens  of  either 
country  from  killing  seal  in  Bering  Sea  at  such  times  and  places,  and 
by  such  methods  as  at  i)resent  are  pursued,  and  which  threaten  the 
speedy  extermination  of  those  animals  and  consequent  serious  loss  to 
mankind.  The  ministers  of  the  United  States  to  Germany,  Sweden 
and  Norway,  Russia,  Japan,  and  Great  Britain  have  been  each  simi- 
larly addressed  on  the  subject  referred  to  iu  this  instruction."  U,  8. 
Vase,  tol.  1,  App.,  168. 

A  copy  of  this  communication  having  been  received  by  Mr.  Phelps, 


43 


ill  tliis 
ijiiiat'c- 
II  years ; 
s  known 
stion  of 
le  iiulis 
1  infonii 
b  Hiitisli 
jiusolvt'S 
Angnst 
id  States 
I  Sweden 
rawn  the 
»s  for  tlie 
Withont 
1  l)C{'uliar 
/eminent 
lisdiction 
(Ivisable, 
,ttaiii  the 
that  tlie 
ts  of  the 
up  their 
tliese  cir- 
s  in  pre- 
■niination 
x\  weal  til 
draw  the 
the  sub- 
the  (rov- 
of  either 
ices,  and 
eaten  the 
IS  loss  to 
Sweden 
ach  sinii- 
,"     U.  8. 

\.  Phelps, 


tTnited  States  minister  at  Tiondon.  he  had  an  interview  with  Lord  Sal- 
isbury, the  British  Seeretary  of  State  for  F.)rei},'ii  AHairs,  and  proposed 
that  the  two  govornineiits  should  adopt  a  code  of  rejiulations  for  tlie 
preservation  of  the  seals  in  Berinfj  Sea  from  destruction  at  improper 
times  ami  by  impropiU*  means  by  the  <'itiz<'iis  of  either  eoiintry — sindi 
a<rrcement  to  be  entinOy  irrespective  of  any  questions  of  conlli('tiii,tr 
Jurisdiction  in  those  waters.  This  proposal,  Mr.  Phelps  reported, 
was  acquiesced  in  by  Ijord  Salisbury,  who  suj^jjested  that  the  AuH'iican 
Minister  obtain  from  his  Government  ami  submit  a  sketch  of  a  system 
of  re}::u!ations  that  would  be  adequate  for  the  purpose.  U.  8,  Cane, 
Vol.  1,  App.,  171. 

Under  date  of  February  7,  1SS8,  Mr.  Ilaj'ard  wrote  to  Mr.  IMielpa 
disclosing,  in  some  detail,  the  reasons  why  prompt  action  was  nec«'saary 
in  order  to  ])revent  the  entire  destruction  of  the  fur  seals  fieiincnting 
the  islands  of  the  United  States  in  Bering  Sea,  as  well  as  those  found 
on  the  islands  belonging  to  Kussia.  Ilesponding  to  the  suggestion 
in  respect  to  code  of  regulations,  he  said: 

"The  only  way  of  obviating  the  lamentable  result  above  predicted 
appears  to  be  by  the  United  States,  (Ireat  Britian,  and  other  interested 
powers  taking  concerted  action  to  jirevent  their  citizens  or  subjects 
from  killing  fur  seals  with  firearms  or  other  destructive  weajjons 
north  of  50  degrees  of  north  latitude,  and  between  !(»()  degrees  of  longi- 
tude west  and  170  degrees  of  longitude  east  from  Greenwich,  during  the 
period  intervening  between  A]>ril  15  and  November  1.  To  prevent  the 
killing  within  a  marine  belt  of  40  or  50  miles  during  that  period  would 
be  inettectual  as  a  preservative  measure.  This  Avould  clearly  be  so 
during  the  approach  of  the  seals  to  the  islands.  And  after  their  arrival 
there  such  a  limit  of  j^rotection  would  also  be  insnflicient,  since  the 
rapid  i)rogress  of  the  seals  through  the  water  enables  them  to  go  great 
distances  from  the  islands  in  so  short  a  time  that  it  has  be<'n  calculated 
that  an  ordinary  seal  could  go  to  the  Aleutian  Islands  and  back,  in  all 
a  distance  of  300  or  400  miles,  in  less  than  two  days."  What  would 
take  place  unless  steps  were  taken  to  pre-^ ,  ve  this  ra(!e  INFr.  Baj'ard  pro- 
ceeded to  show:  "That  the  extermination  of  the  fur  seals  must  soon 
take  pLace  unless  they  are  protected  from  destruction  in  Bering  Sea 
is  shown  by  the  fate  of  the  animal  in  other  parts  of  the  world,  in 
the  absence  of  concerted  action  among  the  nations  interested  for  its  pre- 
servation. Formerly,  many  thousands  of  seals  were  obtained  annually 
from  the  South  Pacific  Islands  and  from  the  coasts  of  Chile  and  South 


^ 


44 

Africa.  Tlioy  wcro.  nlso  ('(tininon  in  llio  l'';illvIaM<l  IhIuimIs  nud  tlio  iulja- 
('.out  HCiiH.  lUit  ill  t]ios()  isliinils,  wiicro  liiiiidrodsot' tiioiisandH  ot'skiiiH 
wero  foniiorly  obtsiiiiod,  there  have  been  taken,  aeeordiiifj  to  the  best 
8tatiHti(!S,  Hinee  1880, h'.ss  tliaii  ],r)(H)  skiiia.  In  some  cases  tlie  indis- 
criininato  ahiuffhter,  especially  by  use  of  lirearms,  has  in  a  few  years 
resulted  in  (completely  breaking;  up  extensive  rookeries.  •  •  •  It  is 
manifestly  for  the  interests  of  all  nations  that  so  deplorable  a  thinp; 
should  not  be  allowed  to  occur.  As  has  already  been  stated,  on  the  l*rib- 
ilof  Islands  this  (loveriinient  strictly  limits  the  number  of  seals  that 
may.be  killed  under  its  own  lease  to  an  American  company,  and  citizens 
of  the  United  States  have,  durin<jf  the  past  year,  \hh'U  arrested,  and  ten 
American  vessels  seized  for  killin<jf  fur  seals  in  IJeriiijCf  Sea."  He  fur- 
ther observed  that  Great  Britain,  in  <!oop«'ratiii<j  with  the  United 
Stat«^s  to  jnevent  the  destruction  of  fur  seals  in  I?erinj>'  Sea  would 
aid  in  perpc^tuatinjj  an  extensiv*"!  and  vabnible  industry  in  which  her 
own  citizens  have  the  most  lucrative  share.     U.  S.  Case,  Vol.  1,p.  173. 

Mr.  Phelps,  upon  receiving  this  communication,  held  an  interview, 
in  Londcni,  with  both  LfU'd  Salisbury  and  the  Russian  Ambassador,  M. 
de  Staal,  and  reported,  under  date  of  Febnuiry  25, 188S,  that  his  lord- 
ship assented  to  the  ]>roposition  of  Mr.  Bayard,  and  that  he  would 
filsojoin  the  United  States  Government  in  any  preventive  measures  it 
may  be  thou<;lit  best  to  adopt,  by  orders  issued  to  the  naval  vessels  in 
that  re}; ion  of  the  respective  governments.  U.  S.  Case,  Vol.  1,  App., 
173.  The  Kussiau  ambassador  concurred,  so  far  as  his  i)ersonal  ojiin- 
ion  was  concerned,  in  the  propriety  of  the  proposed  measures  for  the 
protection  of  the  seals,  and  promised  to  comniunicate  at  once  with  his 
Government. 

In  reply  to  the  last  letter  Mr.  Bayard  wro^c  to  Mr.  Phelps:  "It  is 
hoped  that  Lord  Salisbury  will  };;ive  it  favor.ibUM  onsideration,  as  there 
can  be  no  doubt  of  the  importance  of  presp.ri'iag  the  seal  fisheries  in 
Bering  Sea,  and  it  is  also  desirable  that  this  should  be  done  by  an 
arranoement  between  the  governments  interested  without  the  United 
States  being  called  upon  to  consider  what  special  measures  of  its  own 
t\\Q.  exceptional  character  of  the  property  in  question  might  require  it 
to  take  in  case  of  the  refusal  of  foreign  powers  to  give  their  coopera- 
tion. Whether  legislation  would  be  necessary  to  enable  the  United 
States  and  Great  Britain  to  carry  out  measures  for  the  protection  of 
the  seals  wimld  depend  much  upon  the  character  of  the  regulation ;  but 
it  is  probable  that  legislation  would  be  required.    The  manner  of  pro- 


45 


teciting  the  seals  would  dojioiid  upon  tlio  kind  of  ariaiij,'omont  wliich 
Great  Britain  would  be  willing  to  make  with  the  United  States  for  tin? 
poliiting  of  the  seas  and  for  the  trial  of  British  subjects  violating  the 
regulations  which  the  two  governments  nniy  agree  upon  for  such  pro- 
tection."    U.  8.  Case,  Vol.  1,  App.,  175. 

During  a  temporary  absence  of  Mr.  IMielps  from  Iiondon,Mr.  White, 
the  United  States  (Jharge  d'Atfaires,  had  an  interview  with  Lord  Sal- 
isbury .ind  the  Itussian  ambassador,  and  reported  that  M.  il«>  Staal 
expressed  a  desire,  on  behalf  of  his  government,  to  inidude  in  the  area, 
to  bo  protected  by  the  convention  the  Sea  of  Okhotsk,  or  at  least  that 
portion  of  it  in  which  llobben  Island  is  situated,  there  being,  he  said, 
in  that  region  large  nuntbers  of  seals  whoso  destruction  is  threatened 
in  the  same  way  as  those  in  Bering  Sea;  and  that  Lord  Salisbury, 
in  order  to  meet  the  Eussian  Government's  wishes  resp«'cting  tlio 
waters  surrounding  Hobben  Island,  suggested  that,  besides  the 
whole  of  Bering  Sea,  those  portions  of  the  sea  of  Okhotsk  and  of  the 
Pacific  Ocean  north  of  latitude  47  degrees  should  be  included  in  the  pro- 
posed arrangement.  His  lordship  intinuited,  furthermore,  that  the 
period  proposed  by  tho  United  States  for  a  close  time,  April  15  to  No- 
vember 1,  might  interfere  with  the  trade  longer  than  absolutely  neces- 
sary for  the  protection  of  the  seals,  and  ho  suggested  October  ] ,  instead 
of  a  month  later,  as  the  termination  of  the  period  of  seal  protection. 
U.  S.  Case,  Vol.,  1,  App.,  17!). 

Mr.  Bayard,  in  reply,  said  that  he  did  obje(;t  to  the  inclusion  of  the 
Sea  of  Okhotsk,  or  so  much  of  it  as  was  necessary  for  the  protection  of 
the  seals;  nor  did  he  deem  it  absolutely  necessary  to  insist  on  the  ex- 
tension of  the  close  season  till  the  1st  of  November.  Only  such  a  per-'od 
was  desired  as  was  requisite  for  the  end  in  view.  But  that  suc- 
cess maybe  assured  ia  the  ettbrts  of  the  various  governments  int«;r- 
ested  in  the  protection  of  tho  seals,  it  seemed  advisable  to  take  the  15th 
of  October  instead  of  the  1st  as  the  date  of  the  close  time,  although, 
the  1st  of  November  would  be  safer.     V,  H.  Case.  Vol.  J,  App.,  180. 

At  the  argument  there  was  some  controversy  between  counsel  as  to 
whether  Lord  Salisbury  had,  in  fact,  agreed  to  any  particular  mode  of 
protecting  those  fur  seals  from  destruction.  It  is  quite  suflicient, 
in  any  view  of  this  case,  to  accept  the  account  Lord  Salisbury  him- 
self gave  of  the  meeting  between  himself  and  the  representatives  of 
the  United  States  and  liussia,  on  which  occasion  was  considered  the 
question  of  the  preservation  of  the  t'urseal  species.    The  principal 


i  1 


46 


iii(('rvi(>w  on  tliU  siiltjtH'.t.  was  Ik^IiI  on  lll(^  KiLii  ol'  ApiiK  ISSS,  and  its 
ivsnil  was  statcti  tlui  sanu^  day  in  an  «)nic.iai  oouiniunicalion  IVoin  Ijoi'd 
Salislniry  to  tlu  llritisli  IMinistt^r  at  Wa.sliin^ton.  IjouI  Salisbnty 
saio:  *'A1  litis  pr«'liininary  disi'iission  it  was  d<M'id«'d  provisionally,  in 
order  to  t'urnisli  a  basis  for  nc^'otiation,  and  williont  dotinilciiy  picdK'- 
int;  our  .y:o\i'runuMits,  tliat'  llu^  spaco  t«>  b(M'ovort'd  by  tlui  i»ropos«'tl 
«-onv(>nlioit  should  bo  tJii^  S(M  b('tAV(^oi:  AnuMica  iiiui  Kiissia  nortii  of 
tii«>  I  Till  <l(>;4r(>«'  ul'  latitude;  that/  tlio  close  time  »lionld  (extend  IVoni 
the  l.'ttli  ol°  April  tit  th(«  1st.  «>!'  Novend>er;  that  dnriii;;'  tluit>  linitt  the 
slaiijihlt'i' ot'  all  seals  should  be  CorbiddiMi,  and  vessels  enjiajied  in  it 
should  lu>  liable  to  sei/.uio  by  the  cruisers  of  any  »>f  the  three  po\v«'rs 
and  should  be  taken  to  the  port  (»f  their  own  nationality  forcondeniua 
tiiui;  that  the  tratlie  iii  arms,  alcohol,  aiul powder,  should  bo  prohibited 
in  all  the  islands  of  those  seas;  and  that,  as  s«>on  as  tlu'  thre«v  pitwers 
had  ronclud(>tl  a  convention,  they  should  ,i«)in  in  submitting;'  it<  for  the 
assent  of  the  other  maritime  powers  of  the  northern  seas.  The  United 
States  char<;('  d'alVaire.s  was  exceediufily  earnest  in  luessiii}-'  on  us 
the  im|)oriance  of  dispateh,  on  aecount  of  the  incouceivaide  slau<;;htur 
thai  had  bc»>u  ami  was  still  fioiuy  on  in  these  seas,  lie  lated  that,  in 
addition  to  the  vaist  iiuantity  brouj>ht  to  ntaiket,  it  was  a.  common 
practice  lor  those  iMi,naged  in  the  trade  to  shoot  all  seals  they  mij;ht 
mi>cl  in  the  o|>i>n  sea,  and  that  (d'  these  a  j;reati  luunber  sank,  so  that 
their  ski'..  >  could  not  be  I'ccovered."  liritislt  (Uts<;  Vol.  3,  A yp. ,196;  U. 
^^  (\m\  Vol  t,  .[pp.,  :J:iS. 

\  similar  communication  was  sent  to  !5ir  Iv.  Murier,  the  British  Am- 
bassatlor  at  St.  Tetorsburj;'. 

These  nctiotiatiiuis  resulted  in  notliiuy  of  a  practical  nature  because 
ot  the  objections  raised  by  the  Canadian  CJovernmeiit  to  any  su(di  plan 
astliat  to  which  the  representatives  of  Great  liritain,  the  United  States 
and  Uussia,  *•  provisionally,  in  order  to  furnish  a  basis  for  negotiation," 
assented  at  tlu>  meeting"  of  April  1(1,1888. 

Mr.  I'helps.  had  a  conversation  with  Lord  Salisbury  on  the  13tli  of 
August,  ISSS,  and  again  prcvssed  for  I'.ie  completion  ..i  the  convention, 
as  the  propttsed  extermination  of  the  seals  by  Canadian  vessels  was  un- 
derstood to  be  rapidly  proceeding.  His  lordship  did  not  question  the 
jtropriety  or  impoitiiuce  of  taking  nieasures  to  prevent  the  wanton  de- 
struction of  so  valuable  an  industry,  in  which,  a8  he  remarked,  England 
had  a  large  interests  of  its  own.  But  he  said  that  the  Canadian  Gov- 
ci'iimont  objected  to  any  siicU  restrictious,  and  that  until  its  consent 


47 


•li  pliin 

States 

latioii," 

liath  of 

'nti(»ii, 

Iv  as  lui- 

koii  the 

ton  lie- 

111  Gov- 
niseut 


roiild  1x1  obtained,  ilcr  Majesty's  (iovei  innetil.  was  not  williii;;  to  enter 
into  the  eon  volition;  that  time  would  be  ret|nisitu  to  l)riii^'  about  that ; 
and  that  iiieanwhihi  tlie  eoiiveiilioii  iiiiisly  wail.  It,  Iheii  bccaiiie  ap 
jiaieiit  l,o  Mr.  IMie.lps  lhal<  tiie  liril.ish  (Soveriiiiieiit  would  not,  cxft-iilc, 
the  desired  eonveiition  willioiit  tint  eoiir.iiriciico  of  Oiiiiaila.  W'liliii;; 
lo  Mr.  ISayat'd,  ScplcMulK-r  lli,  ISSS,  Mr.  I'hel|ts,  in  j^iviii;;'  an  accoiiiil, 
of  his  iiiteiviiiw  willi  liord  .Salisbury,  said:  "  (iertain  (Canadian  vi'sscls 
are  making  a  prolit.  out;  of  the  destruction  of  IIki  sr.al  in  the,  breeding 
season  in  the,  waters  in  (|uesti<Mi,  iiihuiiiaii  and  wasteful  as  it  is.  That, 
it  l<;ads  to  the  speedy  exteriiiiiiation  of  the  animal  is  no  loss  to  (.'aiiada, 
beeause  no  part  of  these,  seal  fisheries  b(;loii;;'  to  that  <',ouiitry;  and  t,he 
only  profit  o[>en  to  it  in  eoniie.etion  with  theni  is  l)y  diistroyiii^' (he  seiil 


iltii 


III  tne  open  s(>a  <lurin^i,lie  ureedin;^;  tune,  altiiou^fh  many  ol  the  animals 
killed  ill  that  way  are  lost,  and  those  saved  a>re,  worth  mneli  less  than 
when  killed  at  the  prop(;r  time,  llinh-r  these  eireumslanees,  the  (iov- 
erninuiit  «>!'  the,  (Jiiit<-d  Slattts  must,  in  my  o|)inion,  eilhei  submit  to 
havii  these  valuable,  fisheries  destroye<l  or  must  tak(i  nuiasures  to  prevent 
their  destruelion  by  eaptiirinij  the  vt^ssels  employed  in  it.  I5etween 
these  alteinatives  it  does  not  appear  (o  me  there  should  be  the,  sli;,dilest 
luisitation."     (I.  *S'.  (hisa,  Vol.  J,  pp.  isi,  jsji*. 

Upon  liie  accession  of  Mr.  Ilairison  to  the  oflice  of  Pn'sident,  tlie 
matttMS  in  dispute  b«^tw(H'n  liie  two  (Joveriiments  bein;^'  iiiis(;ttled, 
aj;ain  l)ecame,  the  subject  of  diplomatic  corresiMuuleiice.  That  eoir«i 
spoiubmce  is  too  voluminous  to  bo  reproduced  in  litis  opinion.  ISut  a 
reference  to  an  interview  between  Mr.  IJiidne  ami  the  llritish  minister 
at  Washington,  which  took  jdaee  OccobcM-  lit,  IS.Sl),  toi^etln-r  with 
extracts  from  some  of  tint  c;><amiiiiiei'.tions  emanating'  from  the  Stale 
l)e|)artment,  will  sulVice  to  show  the  j>eneral  ffrounds  upon  which  the 
position  tluui  taken  by  the  United  States  was  bas(!(l. 

In  the  report  which  Sir,!ulian  I'auncefote  nuide  to  Lord  Salisbury  of 
the  abov"  interview,  it  is  said  : 

"  We  had  a  j;ieat  deal  of  friendly  discussion,  in  the  c<airs<i  of  which 
lie  stat'"'  that  the  seizures  of  the,  ('aiiadiau  s(!al  lishinj,'  vessels  had 
been  euccted  by  the  Treasury  Department,  which  is  charjjed  with  tin; 
protection  and  collection  of  the  revenue  (ineludifi;;'  that  derived  from 
the  Alaska  Company),  and  the  measure  Inul  been  resorted  to  under  the 
belief  that  it  was  warranted  by  the  aet  of  Conji^ress  and  tlie  proclama 
tjon  of  the  President.  In  this  view  the  Department  had  been  eonliriued 
by  the  Judgment  of  the  dis*^"ict '  jurt  of  Alasku,.    I  observed  that  this 


48 


ap])eared  like  an  assertion  of  the  mare  clautmm  doctrine,  which  I  could 
hardly  believe  would  be  revived  at  the  present  day  by  his  Government 
or  any  other,  to  which  he  replied  that  his  Goverunieut  had  not  officially 
asserted  such  a  claim,  and  therefore  it  was  iinneeessary  to  discuss  it. 
As  a  matter  of  fixet  there  had  been  no  interference  with  any  Canadian 
vessels  in  Bering  Sea  except  such  as  were  found  engaged  in  the  capture 
and  destruction  of  fur  seals.  But  his  Government  claimed  the  exclusive 
riglitof  seal  fishery,  whicb  the  United  States,  and  Itussia  before  them, 
had  practically  enjoyed  for  generations  without  any  attem[»t  at  interfer- 
ence from  any  other  country.  The  fur  seal  was  a  species  most  valuable 
to  mankind  and  the  Bering  Sea  was  its  last  stronghold.  The  United 
States  had  bought  the  islands  in  that  sea  to  which  these  creatures 
])eriodically  resort  to  lay  their  young,  and  now  Canadian  fishermen 
step  in  and  slaughter  the  seals  on  their  passage  to  the  islands,  without 
taking  heed  of  the  warnings  given,  by  Canadian  officials  themselves, 
tliat  the  result  must  inevitably  be  the  extermination  of  the  species. 
This  was  an  abuse,  not  only  reprehensible  in  itself!,  and  opposed  to  tiie 
interests  of  mankind,  but  an  infraction  of  the  rights  of  the  United 
States.  It  infiicted,  moreover,  a  serious  injury  on  a  neighboring  and 
friendly  State,  by  depriving  it  of  the  fruits  of  an  industry  on  which  vast 
sums  of  money  had  been  expended,  and  which  had  long  been  i)ursued 
exclusively  and  for  the  general  benefit.  The  ease  was  so  strong  as  to 
necessitate  measures  of  self-defense  for  the  vindication  of  the  rights  ot 
the  United  States  and  the  protection  of  this  valuable  fishery  from  des- 
truction. 1  replied  that  as  regarded  the  question  of  right  I  could  not 
admit  that  the  seizure  of  the  Canadian  vessels  was  Justified  under  the 
terms  of  the  act  of  Congress  or  of  the  lU'oclamation  of  the  President. 
Municipal  legislation  could  have  no  oi»eration  against  foreign  vessels  be- 
yond territorial  waters.  A  claim  of  exclusive  fishery  on  the  high  seas 
was  opposed  to  international  law,  and  no  such  right  could  be  aciiuiied 
by  prescription.  Mr.  Blaine  observed  that  he  thought  Gieat  Britain 
enjoyed  such  a  right  in  relation  to  i)earl  fisheries  in  some  parts  of  the 
world.  I  said  1  was  not  aware  of  any  such  case.  As  regarded  the 
«piestion  of  fact,  namely,  the  extermiimtion  of  the  fur  seal  species  and 
the  necessity  for  a  'close  season,'  there  was  unfortunately  a  conflict  of 
opinion.  But  if,  upon  a  further  and  more  complete  examination  of  the 
evidence.  Her  Majesty's  Goveriunent  should  come  to  the  conelusioi: 
that  a  'close  season'  is  really  necessary,  and  if  an  agreen)en  '-'iuuld)>e 
arrived  at  ou  the  subject,  ail  diti'erences  vn  questions  of  icgal  ri,'J  ■ 


fi 


49 


I  could 
jminent 
)tticiiilly 
icuss  it. 
iiniicliaii 
captuio 
xclusive 
re  them, 
iuterfer- 
valuiible 
i  IJiiited 
features 
sliermen 
,  Avitliout 
iin  selves, 
species. 
10(1  to  tiic 
e  United 
n'inji;  and 
bicU  vast 
pursued 
)n^'  as  to 
ri,nlits  ot 
rom  des- 
ould  not 
xnder  the 
resident, 
essclsbe- 
lii^h  seas 
aciiuired 
t  liiitaiu 
rts  of  the 
uded  the 
leeies  and 
ion  diet  of 
ion  of  the 
>nclusion 
slioukU)e 
igid  viglt 


V 


would  ipso  facto  disappear.  Mr.  Blaine  expressed  his  readiness  to  pro- 
ceed to  such  an  inquiry,  adding  that  he  would  be  prepared  to  establish 
from  Canadian  evidence  alone  the  absolute  necessity  for  a  '  close  sea- 
son,' but  he  strongly  insisted  that  the  iuquiry  should  take  place  here 
and  be  entirely  of  a  diplomatic  character.  •  •  *  As  regards  com- 
pensation, if  an  agreement  should  be  arrived  at,  he  felt  sure  that  his 
Government  would  not  wish  that  private  individuals  who  had  acted 
bona  fide  in  the  belief  that  they  were  exercising  their  lawful  rights 
should  be  the  victims  of  a  grave  dispute  between  two  great  countries, 
which  had  happily  been  adjusted.  He  was  not  without  hope,  therefore, 
that  the  wishes  I  had  expressed  might  be  met,  and  that  all  might  be 
arranged  in  a  manner  which  should  involve  no  humiliatiou  on  either 
side.  His  tone  was  friendly  throughout,  aud  he  manifested  a  strong 
icsire  to  let  all  questions  of  legal  right  aud  international  law  disap- 
pear in  an  agreement  for  a 'close  season,'  which  he  believes  to  be 
urgently  called  for  in  tlie  common  interest.  It  only  now  remains  for  me 
to  solicit  your  lordship's  instructions  in  regard  to  the  suggestion  of 
resuming  in  Washington  the  tripartite  negotiation,  with  a  view  to 
arriving,  if  possible,  at  snch  a  solution  as  is  proposed  by  Mr.  Blaine." 
British  Case,  Vol.  5,  App.  350-351. 

After  this  interview  the  British  Government  made  complaints  of  other 
seizures  of  British  vessels  in  the  open  waters  of  Bering  Sea.  Those 
complaints  were  met  by  Mr.  Blaine  in  his  letter  of  January  22,  1S90, 
addressed  to  Sir  Julian  Pauncefote.  As  that  letter  contains  a  fuller 
statcmr<>t  of  liie  position  of  the  United  States  than  had  been  nuide  up 
to  th;  :.  tii.u .  nearly  the  whole  of  it  is  given,  as  follows: 

"  a  .  lo  j|/inion  of  the  President,  the  Caiuidiau  vessels  arrested  and 
(ir^tained  i  th;;  Bering  Sea  were  engaged  in  a  pursuit  that  was  in 
itself  coH^jYt  ir.inofi  mores,  a  pursuit  whichof  necessity  involves  a  seiious 
and  permanent  injury  to  the  riglitsofthe  Government  and  people  of 
the  United  States.  To  establish  this  ground  it  is  not  necessary  to 
argue  the  question  of  the  extent  and  nature  of  the  sovereignty  of  this 
Government  over  the  waters  of  Bering  Sea  ;  it  is  not  necessiiry  to 
oxrMU,  certainly  not  to  define,  the  powers  and  privileges  ceded  by 
Bhi  iMporial  Majesty,  the  Emperor  of  Eussia,  in  the  treaty  by  which 
the  *i'isifan  Territory  was  tran.  erred  to  the  United  States.  The 
weiirhty  considerations  growing  out  of  the  acquisiruju  of  that  territory, 
with  all  the  rights  on  land  and  sea  inseparably  connecited  tlierewith, 
nniy  be  safely  left  out  of  view,  while  the  grounds  are  set  forth  upon 
11492 4 


i 


60 


W^ 


wlilili  tills  GoveninK'nt  rests  its  justification  for  tlie  action  complained 
of  by  Her  Majesty's  Govennnent.  It  cannot  be  unknown  to  Her 
Majesty's  Government  that  one  of  the  most  valuable  sources  of  revenue 
from  the  Alaskan  i»o.ssessions  is  the  fur  seal  fisheries  of  the  Bering 
Sea.  These  fisheries  had  been  exclusively  controlled  by  the  Govern- 
ment of  Kussia,  without  interference  or  without  question,  from  their 
original  discovery  until  the  cesvSion  of  Alaska  to  the  United  States  in 
1807.  From  1807  to  1880  the  possession  in  which  Kussia  had  been 
undisturbed  was  enjoyed  by  this  Government  also.  There  was  no 
interruption  and  no  intrusion  from  any  source.  Vessels  from  other 
nations  passing  from  time  to  time  through  Bering  Sea  to  the  Arctic 
Ocean  in  pursuit  of  whiilos  had  always  abstained  from  taking  part  in 
the  capture  of  seals. 

"This  uniforiu  avoidance  all  attempts  to  take  fur  seal  in  those 
waters  had  been  a  constant  recognition  of  the  right  held  and  exercised 
first  by  Kussia  and  subsequently  by  this  Government,  It  has  also  been 
the  recognition  of  a  fact  now  held  beyond  denial  or  doubt  that  the  tak- 
ing of  seals  in  the  open  sea  rapidly  leads  to  their  extinction.  This  is 
not  only  the  well-knowu  opinionof  experts,  both  British  and  American, 
based  upon  prolonged  observi'iion  and  investigation,  but  the  fact  has 
also  been  demonstrated  in  a  wide  sense  by  the  well  nigh  total  destruc- 
tion of  all  seal  fisheries  except  the  one  in  Bering  Sea,  which  the  Gov- 
eriMiioiit  of  the  United  States  is  now  striving  to  preserve,  not  altogether 
for  the  use  of  the  American  people,  but  for  the  use  of  the  world  at  large. 

"The  killing  of  seals  in  the  open  sea  involves  the  destruction  of  the 
female  in  common  with  the  male.  Tiie  slaughter  of  the  female  seal  is 
reckoned  as  an  immediate  loss  of  three  seals,  besides  the  futuie  loss  ot' 
the  whole  number  which  the  bearing  seal  may  produce  in  the  succes- 
sive years  of  life.  The  destruction  which  results  from  killing  seals  in 
the  open  sea  proceeds,  therefore,  by  a  ratio  which  cimstantly  and  i:'p- 
idly  increases,  and  insures  the  total  extermination  of  the  species  within 
a  very  brief  period.  It  has  thus  become  known  that  the  only  proper 
time  for  the  slaughter  of  seals  is  at  the  season  when  they  betake  them- 
selves to  the  land,  because  the  land  is  the  only  place  where  the  neces- 
eary  discriminatu)n  can  bo  made  as  to  the  age  and  sex  of  the  seal.  It 
would  seem,  ther,  by  fair  re<isoiiing,  that  nations  not  possessing  the 
territory  upon  ■ ,  i.icb  seals  can  increase  their  numbers  by  natural  growth, 
and  thus  afford  an  annual  supply  of  skins  for  the  use  of  mankind,  should 
refrain  from  the  slaughter  in  open  sea,  where  the  destruction  of  llie 
species  is  sure  and  swift. 


uplained 
I  to  Uer 
'revenue 
e  Bering 
Goveru- 
om  their 
States  in 
uul  been 
e  was  no 
oin  otlier 
le  Arctic 
5  l)art  in 

in  those 
exercised 
also  been 
it  the  tak- 
I.    This  is 
American, 
e  fact  has 
»1  (lestruc- 
1  the  Gov- 
iltosether 
at  large, 
ion  of  the 
e  seal  is 
111  e  loss  ot' 
le  succes- 
!••  seals  in 
and  i:  p- 
ies  within 
ily  proper 
ake  them- 
the  neces- 
seal.    It 
ssing  the 
il  growth, 
id,  should 
iou  of  llic 


"After  the  aciinisilioii  of  Alaska  tlie  Govcrniiicnt  of  the  rJnitcd 
States,  tliroiigli  coinpetenf  a;;ciits  working  under  the  direction  of  the 


best  experts 


letul  attention  to  th 


uri,  j^<in;»^<in;iiii  aiiviiLiwii  i,v/  i-iu  iiiiproveinent  of  tlic  soal  lish- 
cries.  Proceeding  by  a  close  obt'dieiice  to  the  laws  of  nature,  and  rig- 
idly limiting  tiie  ii'nnbcr  to  be  annually  slaughtered,  the  Government 
succeeded  in  increasing  the  total  number  of  seals  and  adding  corre- 
spondingly ami  largely  to  the  vulue  of  the  fisheries.  In  the  course  of  a 
few  years  of  intelligent  and  iutcu'csting  experiment  the  number  that 
could  be  safely  slaughtered  was  lixed  at  100,000  annually.  The  com- 
pany to  which  tlie  administration  of  the  fisheries  was  intrusted,  by  a 
lease  from  this  Goveinment,  has  paid  a  rental  of  $50,000  per  annum, 
and  in  addition  thereto  $2.02^  i)er  skin  for  the  total  number  taken, 
The  skins  were  regularly  transported  to  London  to  be  dressed  and  ])re- 
pared  for  the  naikets  of  the  world,  and  the  business  had  grown  so 
large  that  t^e  earnings  of  English  laborers,  since  Alaska  was  trans- 
fened  to  the  United  States,  aiiiount  in  the  aggregate  to  more  than 
*  12,000,(100.  The  entire  business  was  then  conducted  i)eaceful]y,  law- 
fully, and  i)i()ritably — profitaljly  to  the  United  States,  for  the  rental  was 
yielding  a  moderate  interest  on  the  large  sum  which  this  Government 
had  iiaid  for  Alasl;a,  including  the  rights  now  at  issue;  profitably 
to  the  Alaskan  Company,  which,  under  governmental  direction  and 
restriction,  had  given  unwearied  pains  to  the  care  and  deveh)pment  of 
the  fisheries;  profitably  to  the  Aleuts,  who  were  receiving  a  fair  pecu- 
niary reward  for  their  labors,  and  were  elevated  from  semi-savagery  to 
civilizati<»n  and  to  the  enjoyniont  of  schools  and  churches  pr()vide<l  for 
their  benefit  by  the  Government  of  the  United  States,  and,  last  of  all, 
profitably  to  a  large  body  of  English  laborers,  who  had  constant  em])loy- 
meiit  and  received  good  wages. 

''This,  in  brief,  was  the  condition  of  the  Alaska  fur  seal  fisheries  down 
to  the  year  I.S80.  The  precedents,  customs,  and  rights  had  been  estab- 
lished and  enjoyed  either  by  IJussia  or  the  United  States  for  nearly  a 
century.  The  two  nations  were  the  only  powers  that  owne<l  a  foot  of 
land  on  the  continents  that  bordered,  or  on  the  islands  included  within, 
the  lierlng  waters  where  the  seals  resort  to  breed.  Into  this  peaceful 
and  secluded  field  of  labor,  whose  benefits  were  so  equitably  shared  by 
the  native  Aleuts  of  the  Pril)ilof  Islands,  by  the  United  States,  and  by 
England,  certain  Canadian  vessels  in  1880  asserted  their  right  to  enter 
and  by  their  ruthless  course  to  destroy  the  fisheries,  and  with  them  to 
desitroy   also  the  resulting  industries  which  are  so   valuable.     Tlie 


62 


Government  of  the  United  States  at  once  proceeded  to  check  this 
movement,  which,  unchecked,  was  sure  to  do  great  and  irreparable 
harm.  It  was  cause  of  unfeigned  surprise  to  the  United  States  that  Her 
Majesty's  Government  sliould  immediately  interfere  to  defend  and 
encourage  (surely  to  encourage  by  defending)  the  course  of  the  Cana- 
dians in  disturbing  an  industry  which  had  been  carefully  developed  for 
more  than  ninety  years  under  the  flags  of  Itussia  and  the  United  States — 
developed  in  such  a  manner  as  not  to  interfere  with  the  public  rights 
or  the  private  industries  of  .any  other  people  or  any  other  person. 

"  Whence  did  the  ships  of  Canada  derive  the  right  to  do  in  1886  that 
which  they  had  refrained  from  doing  for  more  than  ninety  years'?  Upon 
what  grounds  did  Her  Majesty's  Government  defend  in  the  year  1880  a 
course  of  conduct  in  the  Bering  Sea  which  she  had  carefully  avoided 
ever  since  the  discovery  of  that  sea?  By  what  reasoning  did  Her  Maj- 
jesty's  Government  conclude  that  an  act  may  be  committed  with  impu- 
nity against  the  rights  of  the  United  States  whi(5h  had  never  been 
attempted  against  the  same  rights  wiieu  held  by  the  Kussian  Empire? 

"So  great  has  been  the  injury  to  the  fisheries  from  the  irregular  and 
destructive  slaughter  of  seals  in  the  open  waters  of  the  Bering  Sea  by 
Canadian  vessels  that,  whereas  the  Government  had  allowed  100,000 
to  be  taken  annually  for  a  series  of  years,  it  is  now  comiielled  to  reduce 
the  number  to  00,000.  If  four  years  of  this  violation  of  natural  law  and 
neighbors  riglits  has  reduced  tV  3  annual  slaughter  of  seal  by  40  per  cent, 
it  is  easy  to  see  how  short  a  period  will  be  required  to  work  the  total 
destruction  of  the  fisheries. 

"The  ground  upon  which  Her  Majesty's  Government  justifies,  or  at 
least  defends,  the  course  of  tiie  Canadian  vessels  rests  upon  the  fact 
that  they  are  committing  their  acts  of  destruction  on  the  high  seas,  viz, 
more  than  3  marine  miles  from  the  shore  line.  It  is  doubtful  whether 
Her  Majesty's  Government  would  abide  by  this  rule  if  the  attempt  were 
made  to  interfere  with  the  pearl  fisheries  of  Ceyh)n,  which  extend  more 
than  20  miles  from  the  shore  line  and  have  been  enjoyed  by  V^ngland 
without  molestation  ever  since  their  acquisition.  So  vrell  recognized 
is  the  British  ownership  of  those  fisheries,  regardless  of  the  limit  of 
the  3-mile  line,  that  Her  Majesty's  Government  feels  authorized  to 
sell  the  pearl-fishing  right  from  year  to  year  to  the  highest  bidder. 
Nor  is  it  credible  that  modes  of  fishing  on  the  Grand  Banks,  altogether 
practicable,  but  higlily  destructive,  would  be  justified  or  even  permitted 
by  Great  Britain  on  the  plea  that  the  vicious  acts  were  committed  more 
than  3  miles  from  the  shore. 


58 


ck  this 
parable 
[lat  Her 
iid  and 
e  Cana- 
)})ed  for 
Hates— 
c  rights 

880  that 
f    Upon 
ir  188Ga 
avoided 
tier  Maj- 
th  impu- 
vcT  been 
Empire? 
'ular  and 
g  Sea  by 
1 100,000 
o  reduce 
law  and 
>er  cent, 
the  total 

es,  or  at 
the  fact 
^eas,  viz, 
whether 
II  pt  were 
(ud  more 
iCngland 
joguized 
limit  of 
rized  to 
bidder, 
togethei" 
jrmitted 
"ted  more 


"There  are,  according  to  scientific  authority,  "  great  colonies  of  flsli" 
on  the  "Newfoundland  Banks."  Tiiese  coh>nie.s  resemble  the  seats  of 
great  populations  on  land.  They  reinaiu  stationary,  having  a  limited 
range  of  water  in  which  they  live  and  die.  In  these  great  "colonies" 
it  is,  according  to  expert  judgment,  comparatively  easy  to  explode 
dynamite  or  giant  powder  in  such  manner  as  to  kill  vast  (luantities  of 
fish  and  at  the  same  time  destroy  countless  numbers  of  eggs.  Strin- 
gent laws  have  been  necessary  to  prevent  the  taking  of  fish  by  the  use 
of  dynamite  in  many  of  the  rivers  and  lakes  of  the  United  States. 
Tiie  same  mode  of  fishing  could  readily  be  adopted  with  effect  on  the 
more  shallow  parts  of  the  banks,  but  the  destruction  of  fish  in  propor- 
tion M  the  catch,  says  a  high  authority,  might  be  as  great  as  10,000  to  1. 
Would  Her  Majesty's  Government  think  that  so  wicked  an  act  could 
not  be  prevented  and  its  perpetrators  punished  simply  because  it 
had  been  committed  outside  of  the  3-mile  line? 

"Why  are  not  the  two  cases  parallel?  The  Canadian  vessels  are 
engaged  in  the  taking  of  fur  seals  in  a  manner  that  destroys  the  power  of 
reproduction  and  insures  the  extermination  of  the  species.  In  exter- 
minating the  species  an  article  useful  to  mankind  is  totally  destroyed 
in  order  that  temporary  and  immoral  gain  may  be  acquired  by  a  few 
persons.  By  the  employment  of  dynamite  on  the  banks  it  is  not  prob- 
able that  the  total  destruction  of  fish  could  be  accomplished,  but  a 
serious  diminution  of  a  vaUuible  food  for  man  might  assuredly  result. 
Does  Her  Majesty's  Government  seriously  maintain  that  the  law  of 
nations  is  powerless  to  prevent  such  violation  of  the  common  rights  of 
man?  Are  the  supporters  of  justice  in  all  nations  to  be  declared 
incompetent  to  i)revent  wrongs  so  odious  and  so  destructive? 

"In  the  judgment  of  this  Government,  the  law  of  the  sea  is  not  law- 
lessness. Nor  can  the  law  of  the  sea  and  the  liberty  which  it  confers 
and  which  it  protects  be  perverted  to  justify  acts  which  arc  immoral  in 
themselves,  which  inevitably  tend  to  results  against  the  interests  and 
against  the  welfare  of  mankind.  One  step  beyond  that  which  I  lei- 
Majesty's  Government  lias  taken  in  this  contention,  and  pira(;y  finds 
its  justification.  The  President  does  not  conceive  it  possible  tliat  Her 
Majesty's  Govennnent  could,  in  fact,  be  less  indifferent  to  these  evil 
results  than  is  the  Government  of  the  United  States.  But  he  liopes 
that  Her  Majesty's  Government  will,  after  this  frank  expression  of  views, 
more  readily  comprehend  the  position  of  the  Government  of  the  United 
States  touching  this  serious  questiou.    This  Government  has  been  ready 


64 


to  concodo  iimcli  in  order  to  adjust  all  (lilTonMici's  of  view,  and  has,  in 
tlie  judj'iiKMit  oC  file  President,  already  piopose.d  a  solution,  not  only 
equitaitle,  but  j>enerous.  Thus  far  Her  Majesty's  (lovernnn'iit  has 
declined  to  accept  the  proposal  of  the  United  States.  The  President 
now  awaits  with  deep  interest,  not  unmixed  with  solicitude,  any  propo- 
sition for  reasonable  adjustment  which  Her  Majesty's  (lovernnu'nt  nmy 
submit.  The  f<n<'ible  resistance  to  which  this  (Jovernnu'nt  is  constrained 
in  the  Heriny  Sea  is,  in  the  President's  Jnd;4inent,  «lemanded  not  only 
by  the  necessity  of  defending  the  traditional  and  long-established  rights 
of  the  United  States,  but  also  the  rights  of  good  government  and  of 
good  morals  the  world  over. 

"  In  this  contention  the  Government  of  the  United  »States  has  no  occa- 
sion and  no  desire  to  withdraw  or  modify  the  positions  which  it  has  at 
any  time  maintained  against  the  claims  of  the  lmi)erial  Government  of 
Uussia.  The  United  States  will  not  withhold  from  any  nation  the 
privileges  which  it  demanded  for  itself  when  Alaskai  was  i»art  of  the 
liussian  Empire.  Nor  is  the  Government  of  the  United  States  dis- 
posed to  exercise  in  those  possessions  any  less  power  or  authority  than 
it  was  willing  to  concede  to  the  Im])erial  Govennuent  of  Uussia  when 
its  sovereignty  extended  over  them.  The  President  is  persuaded  that 
all  friendly  nations  will  concede  to  the  United  States  the  same  riglil:.s 
and  privileges  on  the  lands  and  in  the  waters  of  Alaska  which  the  same 
friendly  nations  liave  always  conceded  to  the  Empire  of  Uussia."  U.  S. 
Case,  Vol.  T,  App.,  200. 

In  his  letter  of  December  17,  1890,  in  reply  to  Lord  Salisbury's 
letter  of  August  2,  181)0,  Mr.  Blaine  discusses  with  much  elaboration 
and  with  signal  cibility  all  the  (juestions  then  in  dispute  between  the 
two  governments.     In  that  letter  he  says: 

"I  am  directed  by  the  President  to  say  that,  on  behalf  of  the  United 
States,  he  is  willing  to  adopt  the  text  used  in  the  act  of  Parliament  to 
exclude  ships  from  hovering  nearer  to  the  island  of  St.  IFelena  than  H 
mariue  leagues,  or  he  will  take  the  example  cited  by  Sir  George  J)a<len- 
Powell,  where,  by  permission  of  Her  Majesty's  Government,  (!ontr(d 
over  a  part  of  the  ocean  000  miles  wide  is  to-day  auth<u-ized  by  Austra- 
lian law.  The  President  will  ask  the  Government  of  Great  JJritain  to 
agree  to  the  distance  of  20  marine  leagues — within  which  no  ship  shall 
hover  around  the  islands  of  St.  Paul  and  St.  George  from  the  loth  of 
May  to  the  15th  of  October  of  ea(;h  year.  This  will  prove  an  eflective 
mode  of  preserving  the  seal  fisheries  for  the  use  of  the  civilized  world — 


55 


lias,  in 
ot  only 
I'llt  liiis 
resident 
y  propo- 
'iit  niiiy 
>traintMl 
lot  only 
(1  ri<;lits 
t  and  of 

no  ocuia- 
it  lias  at 
unent  of 
tion  the 
it  of  the 
ates  dis- 
lity  than 
sia  when 
(led  that 
lie  l•il!,■ht^1 
the  same 
'     U.  S. 

isbnry's 
boration 
ween  the 

e  United 
nnent  to 
a  than  8 
e  IJaden- 
eontrol 
\nstra- 
>ritain  to 
;hii>  shall 
e  loth  of 
effective 
world— 


a  mode  which  in  view  of  (Ireat  Hritain's  assnnipf  ion  of  power  over  the 
opei!  ocean  she  (uin  not  with  consistency  decline,  (iieat  iJritain  pie- 
scribed  S  leaynes  at  St.  Helena;  but  the  obvious  necessities  in  the 
Ikn-ing  Sea  will,  on  the  basis  of  this  precedent,  justify  20  leagues  lor 
the  protection  of  the  American  seal  fisheries. 

"The  United  States  desires  only  such  control  over  a  limited  extent  of 
the  waters  in  the  Hering  Sea,  for  a  part  of  each  year,  as  will  be  sulli- 
cient  to  insure  the  protection  of  the  fur  seal  fisheries,  already  injured, 
l)ossibly,  to  an  irreparable  extent  by  the  intrusion  of  Canadian  v<'ssels, 
sailing  with  the  encouragenuMit  of  (Jreat  lU'itain  and  protecti'd  by  her 
tiag.  The  gravest  wrong  is  committed  when  (as  in  many  instances  is 
the  case)  American  citizens,  refusing  obedience  to  the  laws  of  their  own 
country,  have  gone  into  partnership  with  the  IJritish  flag  and  engaged 
in  the  destruction  of  the  se.al  fisheries  which  belong  to  the  United 
States.  So  general,  so  notorious,  and  so  shamelessly  avowed  has  this 
practice  become  that  last  season,  according  to  the  report  of  the  Ameri- 
can consul  at  Victorisi,  when  the  intruders  assembled  at  Unalaska 
on  the  4th  of  July,  previous  to  entering  iiering  Sea,  the  <lay  was 
celebrated  in  a  patriotic  and  spirited  manner  by  the  American  citizens, 
who  at  the  time  were  protectted  by  the  British  flag  in  their  violation 
of  the  laws  of  their  own  country. 

"With  such  agencies  as  these,  devised  by  the  Dominion  of  Canada, 
and  protected  by  the  flag  of  Great  Britain,  American  lights  and  inter- 
ests have,  within  the  past  four  years,  been  damaged  to  the  extent  of 
millions  of  dollars,  with  no  corresponding  gain  to  those  who  caused 
the  loss.    »    ♦    * 

"The  repeated  assertions  that  the  Government  of  the  United  States 
demands  that  the  Bering  Sea  be  i)ronounced  ware  r^n<.sHW  are  with- 
out foundatioii.  The  Government  has  never  claimed  it  and  never 
desired  it.  It  expressly  disavows  it.  At  the  same  time  the  IFnited 
States  does  not  lack  abundant  authority,  according  to  the  ablest  expo- 
nents of  international  law,  for  holding  a  small  section  of  the  Bering 
Sea  for  the  protection  of  the  fur  seals.  Controlling  a  comparatively 
restricted  area  of  water  for  that  one  specific  purpose  is  by  no  means 
the  equivalent  of  declaring  the  sea,  or  any  part  thereof,  mare  clatistnn. 
Nor  is  it  by  any  means  so  serious  an  obstruction  as  Great  Britain 
assumed  to  make  it  in  the  South  Atlantic,  nor  so  gronndless  an  inter- 
ference with  the  common  law  of  the  sea  as  is  maintained  by  British 
authority  to-day  in  the  Indian  Ocean."  U.  S.  Case,  Vol.  I,  App.,  263, 284, 
286. 


66 


In  the  same  letter  lie  observes  that  the  ProsidcMit,  not  dosiriitfj  the 
loiif*  postponoiiieiit  which  an  oxaminatioii  of  tlie  lej{al  antliorities  from 
Ulplan  to  Phillimore  and  Kent  would  involve,  refers  to  the  foHowiiifj 
l)assages  in  the  letter  of  Mr.  Phelps  of  September  12,  ISSS,  as  fully  ex- 
pressing his  own  views : 

"Much  learning  has  been  expended  upon  the  discussion  of  the 
abstract  question  of  the  right  of  marc  clamum,  1  do  not  conceive  it 
to  be  applicable  to  the  present  case.  Here  is  a  valuable  fi.sliery  and  a 
large,  and,  if  properly  managed,  permanent  industry,  the  proi)erty  of  the 
nations  on  whose  shores  it  is  carried  on.  It  is  proposed  by  the  colony 
of  a  foreign  nation,  in  defiance  of  the  joint  remonstrance  of  all  the 
countries  interested,  to  destroy  this  business  by  the  indiscriminate 
slaughter  and  extermination  of  the  animals  in  (question  in  the  open 
neighboring  sea  during  the  period  of  gestation,  when  the  common 
dictates  of  humanity  ought  to  protect  them  were  there  no  interest  at 
all  involved.  And  it  is  suggested  that  we  are  prevented  from  defend- 
ing ourselves  against  such  depredations  because  the  sea  at  a  certain 
distance  from  the  coast  is  free.  The  same  line  of  argument  would 
take  under  its  protection  piracy  and  the  slave  trade,  when  prosecuted 
in  the  open  sea,  or  would  justify  one  nation  in  destroying  the  commerce 
of  another  by  placing  dangerous  obstructions  and  derelicts  in  the  open 
sea  near  its  coasts.  There  are  many  things  which  <!an  not  be  allowed 
to  be  done  on  the  open  sea  with  impunity,  and  against  which  every  sea 
is  mare  clausum;  and  the  right  of  self-defense  as  to  person  and  prop- 
erty prevails  there  as  fully  as  elsewhere.  If  the  fish  upon  Canadian 
coasts  could  be  destroyed  by  scattering  poison  in  the  oi)en  sea  adjacent 
with  some  small  profit  to  those  engaged  in  it,  would  Canada,  upon  the 
just  principles  of  international  law,  be  hold  defenceless  in  such  a  case? 
Yet  that  process  would  be  no  more  destructive,  inhunian,  and  wanton 
than  this.  If  precedents  are  wanting  for  a  defense  so  ne<!essary  and 
proper  it  is  because  i^recedents  for  such  a  course  of  conduct  are  like- 
wise unknown.  The  best  international  law  has  arisen  from  pre<!edents 
that  have  been  established  when  the  just  occasion  for  them  arose, 
undeterred  by  the  discussion  of  abstract  and  inadequate  rules."  II. 
S.  Case,  Vol.  1,  Apj).,  363,  287. 

At  a  later  date,  in  his  letter  of  June  14,  1891,  to  Sir  Julian  Paunce- 
fote,  Mr.  Blaine  said : 

"In  the  opinion  of  the  President  Lord  Salisbury  is  wholly  and 
strangely  in  error  in  making  the  following  statement:    'Nor  do  they 


57 


ill};  the 
ies  from 
)llo\viiigr 
'ally  ex- 

1  of  the 
let'ivo  it 
ry  aiul  a 
■tyol'the 
a  coh)ny 
f  all  the 
rimiiiate 
:he  open 
common 
terest  at 
I  (lefeiul- 
a  certain 
it  wouhl 
•osecnted 
sommerce 
the  open 
aUowed 
very  sea 
11(1  prop- 
Canadian 
adjacent 
ipoii  the 
1  a  case? 
Avanton 
ary  and 
are  like- 
Iccedents 
[11  arose, 
Ies."     if. 

IPaunce- 

plly  and 
do  tliey 


(the  ndvisors  of  the  l*resideiit)  reply,  as  ajnsliflcation  for  the  seizure 
of  British  ships  in  the  open  sea,  upon  the  contention  that  the  interests 
of  the  sealtisheries  };ive  to  the  United  States  (Joveniment  any  right 
for  that  jiurpose  which.  acc<n'<ling  to  international  hiw,  it  would  not 
otherwise  possess.'  The  Government  of  the  United  States  has  steadily 
held  Just  the  reverse  of  the  position  which  Lord  Salisbury  has  imputed 
to  it.  It  holds  that  the  ownership  of  the  ishuids  upon  which  the  seals 
breed,  that  the  habit  of  the  seals  in  rej^ulaily  resortinj;  thither  and  rear- 
ing their  young  thei'eon,  that  their  going  out  from  the  ishinds  in  search 
of  food  and  regularly  returning  thereto,  and  all  the  facts  and  incidents 
of  their  relation  to  the  island,  give  the  United  Stat<!s  a  property  interest 
therein ;  that  this  property  interest  was  claimed  and  exercised  by  Uussia 
during  the  whole  period  of  its  sovereignty  over  the  land  and  waters  of 
Alaska;  that  England  recognized  this  property  interest  so  far  as  recog- 
nition is  implied  by  abstaining  from  all  interference  with  it  during  the 
whole  period  of  Russia's  ownership  of  Alaska  and  during  the  lirst  nine- 
teen years  of  the  sovereignty  of  the  [Jnited  States.  It  is  yet  to  be  deter- 
mined whether  the  lawless  intrusion  of  Canadian  vessels  in  ISSG  and 
subsequent  years  has  changed  the  law  and  equity  of  the  case  thereto- 
fore prevailing."     U.  S.  Case,  Vol.  1,  App.,  295,  298. 

The  general  contention  of  the  British  Government,during  the  negotia- 
tions, so  far  as  the  questions  of  right  and  jurisdiction  were  concerned, 
was  that  Russia  neither  asserted  nor  exercised,  and  could  never  have 
rightfully  asserted  or  exercised,  exclusive  jurisdiction  or  ex<;lusivo 
rights  in  the  open  waters  of  Bering  Sea,  except  that  by  the  Ukase  of 
1821  she  forbade  foreign  vessels  from  approaching  nearer  than  100 
Italian  miles  from  the  coast  of  the  North  American  continent  between 
Bering  Strait  and  the  flfty-flrst  degr';e  of  north  latitude,  or  the  coasts 
of  the  Asiatic  continent  from  the  same  strait  to  the  forty-lifth  degree  of 
north  latitude,  or  the  intervening  islands  belonging  to  her;  that  agaii.  .t 
this  prohibition  both  Great  Britain  and  the  United  States  earnesUy 
protested,  and  it  was  withdrawn  or  abandoned  by  Russia  when  she 
made  the  treaty  of  1824  with  the  United  States,  and  that  of  1825 
with  Great  Britain;  that  the  pursuit  of  fur  seals  in  the  open  seas  could 
not  of  itself  be  regarded  as  contra  honos  mores  unless  .'ind  until,  for  special 
reasons,  it  has  been  agreed  by  international  arrangement  to  forbid  it; 
that  Great  Britain  has  always  claimed  the  freedom  of  navigation  and 
fishing  in  the  waters  of  Bering  Sea  outside  the  usual  territorial  limit  of 


58 

one  innrino  loajjiie  from  the  coast;  tliat  tlio  yjiiblic-  right  to  flsli,  catch 
8«^ii1h,  or  imrsiie  any  othci-  lawl'iil  jK'cu|)atioii  on  the  liijih  seas  can  not 
be  hehl  to  be  abaiKhuicd  by  a  nation  from  tlie  more  fact  tliat  for  a  cer- 
tain number  of  years  it  lias  not  suited  tlio  subjerits  of  tliat  nation  to 
exercise  it;  that  fur  seals  were  animals  fcriv,  naturw,  and  were  res 
nulUm  until  caught;  that  no  person  could  have  property  in  them 
until  he  had  actually  reduced  them  into  possession  by  capture,  and 
that  any  iuterfereiu5e  by  the  United  States  with  the  liuntins;  and 
taking  of  these  fur  seals,  in  the  open  waters  of  the  ocean,  by  the 
citizens  or  subjects  of  Great  Britain,  was  a  violation  of  rights  secured 
to  (hem  by  the  law  of  nations. 

The  result  of  tiie  negotiations  was  the  treaty  of  February  29, 1892, 
under  which  this  Tribunal  is  proceeding. 


2. 

.l|TRINDI<;TfOIV  AIV1>  RimiTM  A!«MI:KTRD  AIVD  EXKRCISRn  BY  Rm- 

MiA  i.-v  ni<:i<i.\4,j  nnA,  xyu  i.\  Kio^-tPiurr  to  tiii':  HK/tr  fimiikkikn 

IN  THAT   MIO.i,  riCIOK   TO   TIIK    CI-^MNIO^V   OV    lN«(r   Ol'  AliA!4KA  TO 

TIIK  IJNITI<:i>  MTATKN. 
KFFKCJT  OIK  TIIK  TKBCATV  CONt^rmF.n  IN  I N43  KKTWKEN  KIJIil!>iIA 

AIVU  nill'MT  KKITAIIV. 
TIIK    RimiTH    THAT    I>A!<i.*<tl<:n    TO    TIflU    Ui'VBTKD    WTATKM    BV    'S'KK 

TRKATV  OF  CI<:!>iMlorv  or   IN07. 

VViti;:  the  knowledge  of  the  origin  and  history  of  the  controversy 
between  rhe  two  (Tovernments  whicli  the  above  statement  furnishes  we 
are  the  bitter  preparinl  to  consider  the  particular  questions  which 
this  treaty  rc(juires  this  Tribunal  to  determine. 

By  Article  VI  of  the  treaty  of  February  29,  .1892,  it  was  provided 
that 

"In  deciding  the  matters  submitted  to  the  Arbitrators  it  is  agreed 
that  the  following  five  points  shall  be  submitted  to  them  in  order  that 
their  award  sliall  embrace  a  distinct  decisiuu  upon  each  of  said  live 
l)oints,  to  wit: 

"1.  What  ex(!lusive. jurisdiction  in  the  sea  now  known  as  the  llering 
Sejv,  and  what  exclusive  rights  in  the  seal  fisheries  therein,  did  Russia 
assert  and  exercise  prior  and  up  to  the  time  of  the  cession  of  Alaska  to 
the  United  States? 

"2.  How  far  were  these  claims  of  jurisdiction  as  to  the  seal  fisheries 
recognized  and  conceded  by  Great  Britain? 


sli,  catch 
ri  can  not 
for  a  ccr- 
luitiou  to 
were  res 
in  thcni 
)tnrc,  and 
till!;'  and 
1,  by  the 
:8  secured 

'  29,  1892, 


»  BY  nrn- 

MIIKItllCN 
,ANKA   TO 

:N  HVHHIA 

BV    TIIK 

mtioversy 

nishes  we 

lus  which 

provided 

is  agreed 
h'der  tliat 
said  live 

lie  r)Crin8' 
lid  Russia 
Llaslca  to 

fisheries 


59 

"3.  Was  tlic  body  of  wafer  now  known  as  I  be  noi-juff  Sea  incbub'd 
in  the  phrase  '  I'acilic  Ocean,' as  used  in  the  treaty  of  1825  between 
(heat  Britain  and  IJnssia,  and  what  ri<;hts,  if  any,  in  the  Hering 
Sea  were  hehl  ami  excbisively  exercised  by  Russia  after  said  treaty? 

"4.  Did  not  all  the  rights  of  Russia  as  to  Jurisdiction  and  as  to  the 
seal  tlsherics  in  Bering  >Sea  east  of  the  water  boundary  in  the  treaty 
between  the  United  States  and  Russia  of  the  30th  ]\Iarch,  18G7,  pass 
uniin])aiied  to  the  United  States  under  that  treaty! 

•'5.  Has  the  United  States  any  right,  and,  if  so,  what  right,  of  pro- 
tection or  ])roperty  in  the  fur  seals  fri!(|ucnting  the  islands  of  the 
United  States  in  lUring  Sea  when  such  seals  are  found  outside 
the  ordinary  three  niih'  limit ?" 

All  of  the  i>oints  specilied  in  this  article  of  the  treaty  are,  in  my 
judgiricnt,  embraced  in  the  general  (luestions  for  the  amicable  settle- 
ment of  which  this  Tribnmil  has  been  constituted,  ami  wliicli  are 
described  in  Article  I  of  the  treaty  as  questions  "concerning  the  Juris- 
dictional rights  of  the  United  States  in  the  waters  of  Bering  Sea,  and 
concerning  also  the  preservation  of  the  fur  seal  in,  or  habitually  resort- 
ing to,  said  sea,  and  the  rights  of  the  citizens  or  subjects  of  either 
country  as  regards  tiie  taking  of  fur  seal  in,  or  habitually  resorting  to, 
the  said  waters."  These  general  questions  may  luopei'Iy  be  met  by 
the  answers  tlie  Tribunal  nmkes  to  the  points  jiarticnlarly  named  in 
Article  Vf.  If  they  are  not  so  met,  then  it  will  be  the  duty  of  Arbi- 
trators to  make  such  additional  answers  as  will  cover  all  the  mat- 
ters embraced  in  Article  I.  An  award  that  does  not  dispose  of  those 
points,  as  well  as  of  the  several  matters  generally  named  in  Article 
I,  might  be  disregarded  as  not  such  a  decision  as  the  treaty  requires. 
It  was  not  witliin  the  contemplation  of  the  two  governments  that  any 
matter  embraced  in  either  article  should  bo  left  undetermined  by  the 
Tiibunal.  In  the  belief  that  the 'entire  controversy  in  respect  to  the 
questions  and  points  enununated  in  those  articles  would  be  concluded 
by  the  award,  the  two  governments  engaged,  in  Article  XIV,  "to 
consider  the  result  of  the  proceedings  of  the  Tribur  il  of  Arbitration, 
as  a  full,  ])erfect,  and  final  settlement  of  all  questions  referred  to  the 
Arbitrators,"  and  to  cooperate  in  securing  the  adhesion  of  other  powers 
to  such  regulations  as  might  be  i)rescribed. 

The  first  point  in  Article  VI  of  the  Treaty  involves  an  inquiry  as  to — 
What  exclusive  jurisdiction  in  the  sea  now  known  as  the  Bering  Sea^ 


60 


and  what  exchisire  rif/hts  in  the  ncal  Jhhcrks  therein^  did  Rvma  assert 
and  exercise  prior  and  up  to  the  time  of  the  cession  of  Alaska  to  the 
United  States? 

The  roliitions  lielcl  by  Russia  fo  Bering  Sea  and  to  the  fisheries 
therein,  largely  involve  the  interpretation  to  be  given  to  what  are  called 
the  Ukases  of  179!)  and  Ib'LM,  to  the  treaty  of  181*4  between  liussia 
and  the  United  States,  and  the  treaty  of  1825  between  liussia  and 
Great  Britain.  Those  treaties  were  the  result  of  negotiations  that 
followed  the  vigorous  protests  made  by  the  United  States  and  Great 
Britain  against  the  Ukase  of  1821.  I  will  later  on  consider  their  effect 
upon  any  claims  of  jurisdiction  and  authority  asserted  by  liussia. 

The  Ukase  of  1709,  us  it  is  commonly  called,  was  little  more  than  a 
charter  granted  to  the  liussian  American  Company.  The  material 
portions  of  it  are  in  these  words: 

"By  the  grace  of  a  merciful  God,  we,  Paul  the  First,  Emporor  and 
Autocrat  of  .all  the  Bussias,  etc.  To  the  llussian  Amerii^an  (Company 
under  our  highest  protection.  The  benefits  and  advantages  resulting 
to  our  empire  from  the  hunting  and  trading  carried  on  by  our  loyal 
subjects  in  the  nortlieastern  seas  and  along  the  coasts  of  America  have 
attracted  our  imperial  attention  and  consideration;  therefore,  having 
taken  under  our  immediate  protection  a  company  organized  for  the 
above-named  purpose  of  carrying  on  hunting  and  trading,  we  allow  it 
to  assume  the  appellation  of  "Russian  American  Company,  operating 
under  our  Highest  Protection;"  and  for  the  purposeof  aiding  the  com- 
pany in  its  enterprises,  we  allow  the  commanders  of  our  laiul  and  sea 
forces  to  employ  said  forces  in  the  company's  iiid,  if  octcasion  rcipiires  it, 
while  for  further  relief  and  assistance  of  said  company,  and  having 
examined  their  rules  and  regulations,  we  hereby  declare  it  to  be  our 
highest  Imperial  will  to  grant  to  this  company  for  a  period  of  twenty 
years  the  following  rights  and  privileges: 

"I.  By  the  right  of  discovery  in  past  times  by  Russian  mivigatorsof 
the  northeastern  part  of  America,  beginning  from  the  fifty- fifth  degree 
of  north  latitude  and  of  the  chain  of  islandsextending  from  Kamchatka 
to  the  north  to  America,  and  southward  to  Japan,  and  by  right  of  pos- 
session of  the  same  by  Russia,  we  most  graciously  permit  the  company 
to  have  the  use  of  all  hunting  grounds  and  establishments  now  exist- 
ing on  the  nortlieastern  coast  of  America,  from  the  ;ibove-mentioned 
lifty-lifth  degree  to  liering  Strait,  and  also  on  the  Aleutian,  Kuiile, 
und  other  islands  situated  iu  the  Kortheastcrn  Oceau. 


61 


a  assert 
I  to  the 

fislieries 
•e  called 
lliissia 
^siiv  and 
)ns  tliat 
id  Great 
oirettect 
sia. 

e  tlian  a 
material 

(oror  and 
[Company 
resulting 
oui-  loyal 
lica  have 
e,  having 
(1  for  the 
i  allow  it 
)l)crating 
the  coiu- 
l  and  sea 
.'(luiresit, 
|d  having 
to  bo  our 
f  twenty 

|i  gators  of 
th  degree 
knichatka 
|it  of  pos- 
Icouipany 
h',v  exist- 
lentioned 
I,  Kuiile, 


I 


"IT.  To  unxke  new  discoveries  not  only  north  of  the  fifty-fifth  degree 
of  north  latitude  bni;  farther  to  the  south,  and  to  ot^cupy  the  ?iew  lands 
<liscovered  as  Russian  possessions,  .iceording  to  prescribed  rules,  if 
they  have  not  been  ijreviously  occupied  by  or  been  dependent  on  any 
other  nation. 

"III.  To  use  .and  profit  by  everything  that  has  been  or  shall  be  dis- 
covered in  those  localities,  on  the  surface  and  in  the  interiur  of  the 
earth,  without  competition  from  others. 

"IV.  We  most  graciously  permit  this  company  to  establish  settle- 
ments in  futui-e  times  wherever  they  are  wanted,  according  to  its  best 
knowledge  and  belief,  and  fortify  them  to  insure  the  safely  of  the  in- 
habitants, and  to  send  ships  to  those  shores  with  goods  and  hunters, 
without  any  obstacles  on  the  part  of  the  (Jovernment. 

"V.  To  extend  their  navigaticm  to  all  adjoining  nations  and  hold  busi- 
uess  intercourse  with  all  surrounding  powers,  u[>om  obtaining  their  free 
consent  for  the  purpose,  and  under  our  highest  i)rotection  to  enable 
them  to  i>rosecute  their  enterprises  with  greater  force  ami  advantage. 

"VI.  Toemployfornavigation,  hunting,  and  all  other  business,  freeand 
un8usi)ected  i)eople,  liaving  no  illegal  views  or  intentions.      •       *       • 

"X.  The  exclusive  right  is  most  graciously  granted  to  the  company 
for  a  period  of  twenty  years,  to  use  and  enjoy,  in  the  above  extent  of 
country  and  islands,  all  profits  and  advantages  derived  fiom  hunting, 
trade,  industries,  and  discovery  of  new  lands,  prohibiting  the  enjoy- 
ment of  these  profits  and  advantages  not  only  to  those  who  would  wish 
to  sail  to  those  countries  ou  their  own  account,  but  to  all  fornu'r  hunters 
and  trappers  who  have  been  engaged  in  this  trade  and  have  tlieir 
vessels  and  furs  at  those  places;  and  other  companies  which  nniy  have 
been  formed  will  not  be  allowed  to  continue  their  business  unless  they 
unite  with  the  present  company  with  tlu'ir  free  consei.r;  but  such 
l»rivate  compaiues  or  traders  as  have  tlu^ir  vessels  in  t'  .tc  regions  c-au 
either  sell  their  nroperty,  or,  with  the  company's  consent,  remain  until 
they  have  obtained  a  cargo,  but  no  longer  than  is  re(iuired  tor  the 
loading  and  return  of  the  vessel;  and  after  that  nobody  will  have  any 
privileges  but  this  (me  company,  which  will  be  protected  in  the  eiijoy 
ment  of  all  the  rights  nuMitioned. 

"XI.  Under  our  highest  protection  the  Russian-American  Company 
will  have  full  control  over  all  above-mentioned  localities,  and  exercise 
judicial  powers  in  mimu-  cases.  The  company  will  also  be  permitt(Ml 
to  use  all  local  facilities  for  fortifittations  in  the  defense  of  the  country 


62 


Ih 


under  their  control  aj^ainst  foreign  attacks.  Only  partners  of  tlio 
company  shall  be  employed  in  the  administration  of  the  new  possessions 
in  ch.arge  of  the  company."     U.  8.  Case,  Vol.  1,  App.,  14. 

This  is  the  translation  of  the  Ukase  of  1799  as  given  in  the  origi- 
nal Cases  of  both  governments.  It  is  also  identical  with  that  found 
in  Bancroft's  History  of  Alaska,  the  author  stating  that  the  translation 
adopted  by  him  is  based  on  the  full  text  of  the  charter  from  tlolovnin 
in  Materialui  I.  77-80.  BancrojV^  Works,  Vol.  33,  llistory  of  Alaska, 
p.  379. 

In  the  British  Counter  Case  it  is  said  tliat  the  above  translation  is 
inaccurate,  a'id  what  is  now  claimed  to  be  a  correct  rendering  of  the 
original  iiussian  document,  as  given  by  (Jolovnin  and  Tikhmenie,  is 
produced.  But  at  the  oral  argument  it  was  admitted  *-hat  the  differ- 
ences between  these  translations  did  not  materially  aliect  any  questions 
depending  upon  the  construe*,  ion  of  the  Ukase  of  1799.  For  that  reason 
the  latter  translation  is  not  embodied  in  tl'.is  opinion. 

Did  this  Ukase  assert  an  exclusive  jurisdi'jtion  upon  the  part  of  Bus- 
sia  over  any  part  of  Bering  Sea  beyond  ordinary  territorial  waters? 

It  is  quite  true  that  at  the  dme  the  Ukase  of  1799  was  issued  all  the 
islands  in  Bering  Sea  had  beconie  a  part  of  the  territory  of  Kussia  by 
right  of  discovery  anu  (»c(;upancy,  within  the  rules  announced  by  the 
Supreme  Court  of  thii  United  States  in  Johnson  vs.  Mcltosh,  S  Wheat., 
513,  57Ji,  In  thiit  case  Chief  Justice  Marshall,  speaking  for  the  court, 
said :  "  On  tlie  discovery  of  this  immense  continent,  the  great  nations  of 
Europe  were  eager  to  approjuiate  to  themselves  so  much  of  it  as  they 
could  respectively  require.  Its  vast  extent  afforded  an  ample  held  to 
the  ambition  and  enterprise  of  all;  and  the  character  and  religion  of  its 
inhabitants  afforded  an  apology  for  considering  tliem  as  a  i)eople  over 
whom  the  superior  genius  of  l"]iu'oi)e  might  claim  an  ascendancy.  The 
potentates  of  tlie  old  world  found  nodillicultyin  convincing  themselves 
that  they  made  ample  compensation  to  the  inhabitants  of  the  new  by 
bestowing  upon  them  civilization  and  Christianity  in  exchange  for  unlim- 
ited independence.  But  as  they  were  all  in  pursuit  of  nearly  the  same 
object  it  was  necessary,  in  order  to  avoid  contiicting  settlements  and  con- 
sequent war  with  each  other,  to  establish  a  principle,  which  all  should 
acknowledge  as  tiie  law,  by  which  the  rightof  ac^cpiisition,  which  they  all 
asserted,  should  be  regulated  as  between  themselves.  This  principle 
was  that  discovery  gave  title  to  the  government  by  whose   subjects,  or 


63 


of  tlie 
sessions 

le  origi- 
it  foiiiul 
iiisliitioii 
Jolovniii 
■  AlasJiii, 

Intiou  is 
ig  of  the 
ineiiie,  is 
lie  (liflfer- 
luestioiis 
at  reason 

t  of  Rus- 
iters? 

ed  all  the 
liussia  by 
by  the 
Wheat, 
le  court, 
uitionsof 
t  as  they 
e  liehl  to 
;i()u  of  its 
oi)le  over 
cy.    Tlio 
eiuselves 
e  new  b.y 
or  unlini- 
the  same 
and  eon- 
11  should 
li  they  all 
jprineiple 
Djects,  or 


by  whose  authority,  it  was  made,  against  all  otlier  European  govern- 
ments, wlji(;h  title  might  be  consummated  by  possession.  The  exclu- 
sion of  all  other  Europeans  necessarily  gave  to  the  nation  making  the 
discovery  tlie  sole  right  of  acquiring  the  st>il  from  the  natives,  and  estab- 
lishing settlements  upon  it.  it  was  a  right  with  which  lu)  Europeans 
could  interfere.  It  was  a  right  which  all  asserted  fyr  themselves,  and  to 
the  assertion  of  whicli  by  others  all  assented." 

In  my  judgment  there  is  nothing. in  the  Ukase  of  1799  which  either 
expressly  or  by  necessary  implication  indicates  the  purpose  of  Russia 
to  assert  such  sovereign  authority  over  the  open  waters  of  Rering 
Sea  as  w<mld  ciuible  it  to  exclude  the  vessels  of  other  powers  from 
that  sea,  or  even  to  prohibit  hunting  or  lishing  in  its  waters,  beyond 
the  ordinary  territorial  limits  prescribed  by  the  law  of  nations. 

Prior  to  1799  numerous  rival  companies  or  associations,  maintained 
by  Russian  capital,  were  engaged  in  trading  with  the  mitive  inhabit- 
ants lesiding  on  the  coasts  or  islands  ol"  Bering  Sea.  ^Alany  com- 
plaints were  made  to  the  Emperor  olCinclty  and  wrong  practices  by 
those  associations  toward  the  nativ<'s.  The  "promyshleniki,"  it  was 
said,  "(;ould easily  ti'ke  by  force  what  tliey  imd  not  the  metmstobuy,  or 
what  the  natives  did  not  care  to  sell."  "Thus,"  says  Bancroft,  "foi 
many  years  nuitters  were  allowed  to  take  their  cour-'';  but  toward  the 
eml  of  the  eighteenth  century  the  threatened  exhan  -lion  of  the  known 
sources  of  supply  causeil  nuich  uneasiness  among  the  8iberi;iii  mer- 
chants engaged  in  the  fur  trade,  and  some  of  them  endeavoreil  to  rem- 
edy the  evil  by  vsoliciting  special  privileges  from  the  Government  for 
the  ex(dusive  right  to  certain  islaiuls,  with  the  understanding  that  a 
fixed  percentage  of  the  gross  yielil — usually  (tne-tentli — was  to  be  paid 
into  the  public  treasury.  Such  privileges  were  granted  freely  enough, 
but  it  was  another  matter  to  make  the  nunuTous  half-piratical  traders 
res])e(!t  or  even  pay  the  least  attention  to  them."  Jti.story  of  Alaska^ 
3/')-6.  And  we  have  the  authority  of  a  reiiort  made  by  a  committee, 
under  royal  permission,  for  saying  tiuit  out  of  this  condition  of  atfairs 
arose  the  necessity  recognized  by  the  Hussian  (lovernment  of  one 
strong comi>any  which  ''would  serve  on  tli<^  one  hand  to  i)erpctuato 
Russian  suprennicy  there,  and  on  the  other  would  i)revent  nniny  dis- 
orders and  preserve  the  fur  trade,  the  princi[ial  wealth  of  the  country, 
alfording  protection  to  the  nacives  against  violence  and  abuse,  and 
tending  toward  a  general  improvement  of  their  condition."  Hence 
the  creation  of  the  Russian  American  Com])any  by  the  Ukase  of  1799> 


P1i 


III! 


64 

fo  wliicli.  nc('(»i(liii,!i-  to  the  sfune  report,  "was  granted  full  privi- 
leges, for  SI  period  of  twenty  years,  on  the  coast  of  Northwestern 
America,  l)ej>inning  from  latitude  55°  north  and  including  the 
chain,  of  islands  extending  from  Kamschatka  northward  t<i  America 
and  southward  to  Japan;  the  exclusive  right  to  all  enterprises,  whether 
hunting,  trading,  or  building,  and  to  new  discoveries,  with  strict  pro- 
hibition from  profiting  by  any  of  these  ])ursuits  not  only  to  all  parties 
who  mighteugage  in  thorn  on  their  own  responsibility,  but  also  to  those 
who  formerly  had  ships  and  establishments  there,  except  those  who 
have  united  with  the  new  company."  liancrojVs  History  of  Alaska, 
37!);  Report  on  Rnss.  Amer.  Colonics,  MS.  vi,  13. 

Undoubtedly  it  was  intended  tliat  the  Russian-American  Company 
should  enjoy  these  riglits  and  privileges  without  competition — that  is, 
exclusively,  against  all,  whether  Russian  subjects  or  the  subjects  of 
other  countries.  But  the  rights  and  privileges  so  granted  were  only 
such  as  related  to  business  carried  on  within  the  territorial  dominion 
or  authority  of  Russia.  If  the  translation  of  this  Uiiase,  as  given  in 
the  original  Cases  of  the  two  governments  be  the  correct  one,  the  exclu- 
sive right  granted  to  the  Russiau-Ameriiian  Company  for  twenty  years 
was  only  to  use  and  enjoy  "in  the  above  extent  of  country  and  islands 
all  i)rofits  and  advantages  derived  from  hunting,  trade,  industries, 
and  discovery  of  new  lands."  If  the  translation  embodied  in  the  Brit- 
ish Counter  Ca>-e  be  the  correct  one,  then  the  grant  was  of  an  "exclusive 
right  to  all  acquisitions,  industries,  trade,  establishments,  and  dis- 
covery of  new  countries"  thronghout  the  "entire  extent  of  the  lands 
and  islands  described."  Neither  translation  supports  the  suggestion 
tiuit  the  Emperor  of  Russia  iiiteiuled  to  assert  sovereign  power  over 
any  part  of  Bering  Sea  outside  of  territorial  waters,  and  thereby  in- 
terfere with  the  freedom  of  navigation  in  the  open  waters  of  that  sea, 
or  with  any  sneii  use  of  those  waters  by  the  citizens  or  subjects  of 
(►ther  countries  as  was  sanctioned  by  tlie  law  of  nations.  He  intended 
only  to  assert  an  exclnsive  right  to  control,  for  the  benefit  of  a  par- 
ticular company  taken  under  his  protectiiui,  all  the  prohts  and  ad- 
vantages to  be  derived  from  the  business,  trading,  and  industries 
conducted  within  territorial  ivaters  and  on  the  coasts  and  islands  of 
Russia.  When  the  Ukase  of  1791)  was  issued,  the  hunting  of  fur  seals 
in  the  open  waters  of  the  ocean,  beyoiul  territorial  Jurisdiction,  was 
unknown. 

The  only  part  of  the  Ukase  of  1791)  that  seems  to  give  aJiy  support 


privi- 
resteru 
ng  the 
inerica 
hcther 
i(!t  pro- 
parties 
,o  those 
>se  who 
Alaska, 

>inpany 
■that  is, 
(jects  of 
ive  only 
oiiiinion 
given  in 
le  exclu- 
ty  years 
'.  islands 
ustries, 
le  Brit- 
xclusive 
uid  dis- 
le  lands 
>gestion 
t'er  over 
reby  in- 
hat  sea, 
jects  of 
iiteiided 
f  a  par- 
[ind  ad- 
h  ustries 
\inds   of 
lur  seals 


)n,  was 


support 


65 

whatever  to  the  opposite  view  are  the  words  in  the  first  paragraph 
referring  to  the  benefits  and  advantages  tliat  resulted  to  the  Empire 
from  the  hunting  and  trading  carried  on  by  the  Emperor's  loyal  subj«'cts 
♦'in  the  northeastern  seas  and  along  the  coasts  of  America."  But 
that  was  merely  a  recital — in  what  may,  not  unreasonably,  be  called 
the  preamble  of  tlie  liompany's  charter — of  the  fact  that  llussians  liad 
been  engaged  in  hunting  and  trading,  not  only  "along  the  coasts  of 
America,"  but  ''in  the  northeastern  seas;"  not  that  they  had  been  so 
engaged  in  those  waters,  to  the  exclusion  of  the  citizens  or  subjects  of 
other  countries  rightfully  engaged  in  commer(!e  and  navigation  on  the 
high  seas. 

This  is  made  clear  by  the  granting  clause  of  the  company's  charter, 
which,  referring  to  the  discovery  by  Kunsian  navigators  of  the  north- 
eastern [northwcsternj  part  of  America,  and  of  certain  islands,  and  of 
the  possession  held  in  tiu)se  localities  by  liussia,  permits  the  company 
to  have  the  use,  (notof  the  nortlieastern  seas,  but)  of  all  hunting  grounds 
and  establishments  then  existing  "on  the  northeastern  [northwestern] 
coast  of  America,"  from  the  fifty-i.fth  degree  of  latitude  to  Bering 
Strait,  "and  also  o«  the  Aleutian,  Kurile,  and  other i.s?rtHf?.s',  situated  in 
the  Northeastern  Ocean."  And,  as  already  stated,  the  exclusive  riglit, 
granted  to  the  compijiiy,  as  declared  in  section  10,  was  "to  use  and 
enjoy,  in  the  above  described  extent  of  conntry  and  islands,  all  profits 
an<l  advantages  derived  from  hunting,  trade,  industries,  and  discovery 
of  new  lands." 

In  my  judgment  there  is  nothing  in  the  record  which  even  remotely 
sustains  the  theory  that  llussia  intendcMl,  by  the  Ukase  of  1709,  to 
assert  exclusive  Jurisdiction  over,  or  any  sovereign  control  of,  the 
northeastern  sea  outside  of  territorial  waters.  The  only  purpose  was 
Ui  give  to  a  favored  company  exclusive  privileges  within  the  territory 
and  dominion  of  that  nation.  In  respect  to  that  Ukase,  Mr.  Middh)- 
ton,  the  United  States  Minister  at  St,  Petersburg,  who  negotiated  the 
Treaty  of  1824  with  Russia,  said,  in  a  letter  to  Mr.  Adams  that  it  "  is, 
in  its  /arm,  an  act  purely  domestic,  and  was  never  notified  to  any  foreign 
state  with  injunction  to  respect  its  provisions."  American  l^lute  rapers, 
Foreif/n  liclations,  iJol,  .T,  p.  iGl. 

Nor,  in  my  judgment,  is  there  any  document  or  fact  in  the  juiblic 

history  of  llussia,  as  disclosed  in  the  record  before  us,  which  justifies 

the  contention  that  tiiat  country  asserted  or  exercised,  prior  to  1821, 

exclusive  Jurisdiction  over  the  waters  of  I'.ering  Sea  or  any  exiHusive 

rights  in  the  seal  fisheries  in  that  sea,  ouf.vide  of  territorial  waters. 
11492 5 


if 

i 


66 


I' I 


Tin's  l>rinjjs  us  to  an  oxiuniiialioiiof  tlio  TTknsoof  ISlil,  the  in-ovisions 
of  wliii^li,  as  \v«^ll  as  tiii^  iicj^'otiatioiis  that  arose-  iVoiu  its  proiiiulyation, 
were  the  subject  of  extended  eonunent  by  eonnsel. 

Between  17!)!>  and  1S21  the  waters  of  Bering  Sea  were  visited  by 
vessels  from  varions  countries  in  charge  of  persons  engaged  in  the 
liunting  of  wliah's.  and  wlio  also  carried  on  illicit  and  forbidden  trade 
of  dilVereiit  kinds  with  the  native  iidiabitants  of  llussian  territories, 
in  viohition  of  the  established  jjoliey  of  the  Bussian  Governnient.  Foi- 
th<>  purpose  of  breaking  up  tliat  trad(^  and  enforcing  the  policy  of  his 
(lOVcrnnuMit,  the  l'jni)eror  of  Bussia  issued  the  following  l<]dict,  called 
the  Ukaseof  ISLM: 

"Observing  from  leports  subniitted  to  us  that  the  trade  of  our  sub- 
jects on  the  Aleutian  Islands  and  on  the  northwest  coast  of  AnuMica, 
appertainiiigunto  Bussia,  is  subjected, because  of  secretand  illicit  trattlc, 
to  o])i)ression  and  impediments;  and  iinding  that  the  principal  cause 
of  these  dilliculties  is  the  want  of  rules  establishing  the  boundary  for 
navigation  along  tiiese  coasts,  and  the  order  of  naval  communication 
as  well  in  these  [>laccs  as  on  the  whole  of  the  eastern  coast  of  Siberia 
and  the  Kurile  Islands,  WK  have  deemed  it  necessary  to  determine  these 
eommunications  by  specitic  regulations  which  are  hereto  attached. 

In  forwarding  these  regulations  to  the  directing  senate,  we  command 
that  the  same  be  published  for  universal  information,  and  that  the 
proi)e\'  measures  be  taken  to  carry  them  into  execution." 

Those  regulations  are  entitled  "  7t»/c.s  CHtnhlhlicd  for  the  limits  of 
naviijation  and  order  of  communication  along  the  coast  of  eastern  Sihc 
ria,  the  northwest  coast  of  America,  and  the  Aleutian,  Kurile,  and  other 
islands.''^    A»  given  in  the  Oases  of  both  Governments,  they  contain 
among  other  provisions,  the  following: 

"Sec.  1.  The  pursuits  of  commerce,  whaling,  and  fishery,  and  of  all 
other  industries,  on  all  islands,  ports,  and  gulfs,  including  the  whole  '>f 
the  northwest  coast  of  America,  beginning  from  the  Bering  Straits,  to 
the  fifty  first  degree  of  northern  latitude,  also  from  the  Aleutian  Islands 
to  the  eastern  coast  of  Siberia,  as  well  as  along  the  Kurile  Islands,  fnun 
Bering  Straits  to  the  South  Oaf)e  of  the  Islands  of  Urup,  viz:  to  th(^ 
45^'  50'  northern  latitude,  is  exclusively  granted  to  Bussian  subjects. 

"Seo.  2.  It  is  therefore  prohibited  to  all  foreign  vessels,  not  only  to 
land  on  the  coasts  and  islands  belonging  to  Bussia,  as  stated  above, 
biit  also  to  ai)i)roach  them  within  less  than  100  Italian  miles.  The  trans- 
gressor's vessel  is  subject  to  confiscation,  along  with  the  whole  cargo. 


G7 


visions 
ij;ati()n, 

tod  by 

ill  tlic 
II  trade 
•i  tori  OS, 
t.  Tor 
y  of  his 
i,  called 

mr  aiib- 

Lineriea, 

t  traflic, 

al  cause 

Llaiy  for 
iiication 

■  Siberia 

lie  these 

lied. 

iiiiinaiid 

lat  the 

mits  of 
n  Sibc 
n<l  other 
coutain 

id  of  all 
kvhole  of 
raits,  to 
Islands 
lis,  from 
to  tlu^ 
ijects. 
only  to 
1  above, 
le  trans- 
|e  cargo. 


''Sioo.  .'i.  An  excenlion  to  this  vnle  is  to  bo  made  in  favor  of  vessels 
carried  thither  by  heavy  .i-ales  or  real  want  of  provisions  and  unable 
t<»  make  any  other  shore  but  su(;li  as  belongs  to  IJnssia.  In  those  cases 
they  are  oblijjed  to  produci^  cuiiviiifiiii;'  jiroofs  of  actual  reason  for  such 
exception.  Ships  of  fri<'iidly  governments  nicrely  on  discoveries  are 
likewise  exemjit  from  the  forej^oiiijjf  rule.  In  this  case,  however,  tliey 
iniist  previously  be  provided  with  passiiorts  from  the  lliissian  minister 
of  the  Nav^y. 

"Si;o.  1.  Forei,t:'n  merchant  ships  which,  for  reasons  stated  in  the  foro- 
fjoing  rule,  touch  at  any  of  the  above-mentioned  (toasts  are  oblij^cd  to 
endeavor  to  choose  a  place  where  the  liussians  'ire  settled,  and  to  act 
as  hereunder  stated. 

"Sue.  14.  It  is  likewise  interdicted  to  foreif,ni  ships  to  carry  on  any 
trallic  or  barter  with  the  natives  of  the  islands  and  of  the  northwest 
coast  of  America  in  the  whole  extent  above  mentioned.  A  ship  con- 
victed of  any  trade  shall  be  confiscated. 

"Sec.  !'">.  Tn  case  a  ship  of  the  Russian  Imperial  Navy,  or  one  bo- 
lonjj^iiiR'to  tiie  Ilussian-American  Company,  meet  a  foreign  vessel  on  the 
above  stated  coasts,  in  harbors  or  r^ads  within  the  before-mentioned 
limits,  and  the  commander  find  grounds  by  the  present  re^^nlatioii 
that  the  ship  be  liable  to  seizure  he  is  to  act  as  follows: 

"Sec.  20,  The  commander  of  a  Russian  vessel  suspectinj?  a  foroi;;u  to 
be  liable  to  confiscation,  must  inquire  and  search  th<>  same,  and,  findin<» 
her  s'uilty,  take  possession  of  her.  Should  the  foreign  vessel  resist  he 
should  employ  persuasion,  then  threats,  and  at  last  force,  endeavoring, 
however,  at  all  evcMits,  to  do  this  with  as  much  reserve  as  possible.  If 
the  foreign  vessel  employ  force  against  force,  then  he  shall  consider  the 
same  as  an  evident  enemy,  and  force  her  to  surrender  according  to  the 
naval  laws."     U.  S.  Cose,  Vol.  7,  p.  1G. 

In  Mr.  iJlaine's  letter  of  June  .'iO,  ISOO,  to  Sir  Julian  rauncefoto, 
there  is  a  translation  of  secitions  1  and  2  of  this  Ukase  that  ditt'ers 
somewhat  (tliongli  not,  in  my  oiiinion,  materially)  from  the  translation 
oftlie  same  se<*tions  given  intlie  Cases  of  the  two  Governments.  Tiio 
translation  followed  by  Mr.  Blaine  is  as  follows: 

"Seo.  1.  The  transa(!tioii  of  commerce  and  the  pursnitof  whaling  and 
fishing,  or  any  other  industry  on  the  islands,  in  the  harbors  and  inlets, 
and,  in  general,  all  along  the  northwestern  coast  of  America  from 
Bering  Strait  to  the  fiftyHrst  itarallel  of  northern  latitude,  and  like- 
wise on  the  Aleutian  Islands  and  along  the  eastern  coast  of  Siberia, 


i  ^ 


1  ii 


iri?; 


68 

:mrt  (»n  tlic  ICurilc  Isliuid;*;  tli:it  is,  fioin  rx'iiiifr  Stniils  to  tlio  south- 
cni  promontory  of  the  Ishindof  Uru|»,  viz,  as  farsoutli  i«shvtitu<l(i4r><^rjO' 
north,  ar(>oxcliisivoily  rosorved  to  siibjocts  of  tho  lliissiiin  Ciovt^rnnn'Mt. 
"Sko.  2.  Accordingly,  no  forcij^n  ^csscl  shall  be  allowed  either  to 
put  to  shore  at  any  of  the  coasts  and  islands  under  liussian  dominion, 
assiHHMlied  in  the  lueceilinji'  section,  or  even  to  iij)proach  the  same  to 
within  a  (listanc«M>f  less  than  1(H)  Italian  miles.  Any  vessel  contraveniii}; 
this  pi'ovisiou  shall  be  subject  to  conliscation  with  her  whole  cargo." 
IT.  IS.  (Jane,  Vol.  J,  App.,  L>^1,  S3(>. 

Does  the  Ukase  of  IS'Jl — looking  first  to  its  words  only — import  an 
assertion  upon  the  ])art  of  Russia  of  exclusive  Jurisdiction  ovci-  the 
oi)en  waters  of  Bering  Sea,  or  of  ext^lusive  rights  in  what  are  called 
the  seal  tlsheries  in  those  waters?  If  not,  what  was  the  extent  and 
uatuve  of  the  Jurisdiction  so  asserted? 

This  Ukase  appears,  uiK)n  its  face,  to  be  based  upon  reports  sub- 
mitted to  the  lOmperor  touching  the  trade  of  his  subjects,  not  in  Uering 
Sea,  but  '■'■on  the  Aleutian  fslanils  and  on.  the  northwest  const  of 
America."  The  llist  regulation  has  reference  to  "the  pursuits  of  com- 
merce, whaling,  and  llshery,and  of  all  other  industry  on  all  islands, \)ort,H, 
and  gulfs,  including  the  whole  of  the  northwest  coast  of  America,"  and 
^'alontj  tlie  Kiirile  Tslands."  The  same  regulation  according  to  the 
translation  given  in  the.  letter  of  Secretary  Blaine  to  Sir  Julian  Pauncc- 
fote,  refers  to  "  the  transiiction  of  conuncrce  and  the  pursuits  of  whaling 
and  ti«iliing,  or  any  other  industry,  oii  the  islands,  in  the  harbors  and 
inlets,  ami,  in  general,  all  alonp  the  northwestern  co((st  of  America." 

Considering  next  the  circumstances  under  which  this  ITkase  was 
issued,  we  lind  that  IJussia  had  numerous  colonial  establishments  and 
industries  on  certain  coasts  and  islands.  And  there  were  jiorts,  gulfs, 
harbors,  aiul  inlets  contiguous  to  its  possessions,  and  constituting  part 
of  its  territorial  waters,  in  which  foreigners  carried  on  trade  to  the  prej- 
udice of  the  Itussiau- American  Company  and  in  violation  of  the 
established  policy  of  Ivussia.  The  Kmiieror,  as  his  edict  shows,  claimed 
that  an  illicit  trade  had  been  illegally  carried  on  by  foreigners  with 
those  establishments  and  with  the  native  poimlation.  He  desired 
that  Kussian  subjects  alone  should  enjoy  the  benefits  of  those  estab- 
lishmenls,  and  of  the  industries  under  the  control  of  or  belonging  to 
Russia.  It  was  "  therefore" — that  is,  to  that  end — foreign  vessels  were 
l>rohibited,  not  from  entering  I'eriug  Sea,  but  from  landing  on  the 
coasts  and  islands  of  iiussia  named  in  the  first  regulation,  or  approach- 


69 


!  ROUth' 

.  i'fO  r»o' 

niinciit. 
itlior  to 
iininioii, 

SillllC  to 

iiveniiifi 
cargo." 

iport  an 
>vor  the 
0  called 
tciit  and 

)rts  sul)- 
II  Ucriiiji' 
coast  of 
?  of  coni- 
f7.s,  ports, 
ica,"  and 
nj  to  the 
Pauiice- 
wlialins 
bors  and 
H'U'a." 
;ase  was 
;>nts  and 
:,s,  {.uHs, 
ling  part 
jtlie  prej- 
of  tlie 
claimed 
TS  with 
desired 
|e  estab- 
jging  to 
lels  were 
on  the 
)proach- 


ing  them  within  less  than  10()  Italian  miles.  The  transgressor's  vessel 
and  cargo  wouhl  not  have  been  subject  to  conliscation,  under  the  regu- 
lations establisiicd,  by  engaging  in  whaling  or  lisliing  in  the  open 
waters  outside  of  the  lino  delinod  in  tlie  second  regulation,  namely, 
UK)  Italian  miles  from  the  particular  coasts  and  islands  specilied  in 
the  Ukase  and  regulations.  Wliether,  therefore,  reteiii.ute  be  iiiiuh'  to 
the  words  of  the  Ukase  ov  to  the  circumstancos  umler  which  it  was 
promulgated,  it  is  quite  clear  tliat  Russia  did  not  intend  by  that  edict 
to  assert  any  exclusive  authority  over  the  waters  of  llering  Hea  out- 
side of  100  Italian  miles  from  the  coasts  and  islands  described  in  the 
first  regulation. 

That  we  have  properly  interi)reted  the  LTkase  and  regulations  of 
1821  is,  in  part,  shown  by  the  seciond  charter  granted  to  the  llussian- 
Ainericau  Company,  a  few  days  after  the  above  regulations  were  [uo- 
mnlgated.  That  charter  states  that  the  company  was  cstai)IislMMl  "  for 
carrying  on  industries  and  trade  on  the  mninlnml  of  Ncutliwcstern 
America,  on  ihe  Aleutian  Islands,  and  on  tlie  Kiirile  Tslanits,^^  and  that 
"it  enjoys  the  privilege  of  hunting  ami  tishing  to  the  exclusion  of  all 
other  Russian  or  foreign  subjects,"  not  throughout  Bering  Sea,  but 
"throughout  the  territories  hnig  since  in  the  possession  of  liussia. 
on  the  coast  of  Xorth west  America,  beginning  at  the  northern  point 
of  the  Island  of  Vancouver  in  latitude  51^  north,  and  extending 
to  Bering  Strait  and  beyond,  as  well  as  on  all  islands  aitjoiniiig 
this  coast,  and  all  those  situated  between  that  coast  and  the  eastern 
shore  of  Siberia,  as  well  as  on  the  Kurile  Islands  where  the  conifvauy 
has  engaged  in  the  hunting  down  to  the  South  (Jape  of  the  isi'ind  of 
Urup,  in  latitude  15'^  50'."  This  clearly  indicates  that  the  exclusive 
privileges  granted  to  the  Russian  American  (Jompany  had  no  refereiuie 
to  hunting,  trading,  llshing,  and  industries  in  the  open  seas  outside  of 
100  Italian  miles  from  the  coasts  (IclLiicd  in  the  regulations  of  bSUl. 
That  line  was  established  by  Russia  simply  as  a  means — and  it  was 
deemed  by  the  Emperor  sullicient  for  that  j)urpose — of  |)reventing  for- 
eigners from  coming  into  contact  with  its  colonial  trade  and  industries, 
and  thereby  interfering  with  the  enjoyment  by  the  llussian-American 
Company  of  the  exclusive  rights  and  privileges  granted  to  it. 

Turning  to  the  diplomatic  correspondence  between  Eussia  and  the 
United  States,  what  do  we  tind?  This  Ukase,  and  the  regulations 
promulgated  in  execution  of  it,  were  brought  to  the  attention  of  the 
goverumeuts  of  both  the  United  States  and  of  Great  liritian;  to  the 


I' 


I\i 


; 
I 


II. 


70 

former,  by  M.  do  Polctuia,  tlio  lliissian  minister  iit  Wasliin^'ton,  in  an 
ollicial  commiiiiiciitiou  dated  .laiiuaiy  31),  18JJ,  addicsseil  to  .loliu 
Quiney  Adam.s,  tiie  Amt^riean  Scerotary  of  State.  Mr.  Adams  replied, 
under  date  of  February  U"),  LSliJ,  expressing:;,  by  direction  of  tlie  I'resi- 
(l(!nt,  ids  surprise  at  tins  "assertion  of  a  territoiial  <'laini  on  tlie  part 
of  Ilussia  extondinj;"  to  tUii  tifty-llrst  dej^'ree  of  nortli  latitude  on  this 
eontinent,  and  a  re^jfulation  interdictiir;;"  to  all  commereial  vessels  otiier 
than  Kussian,  under  the  i>enalty  of  seizure  and  eonliscatiou,  to 
approach  u[)i)n  the  high  seas  within  100  Italian  miles  of  the  shore  to 
which  that  claim  is  made  to  a[»ply."  After  observiui;'  that  the  extilu- 
siou  of  the  vessels  of  citizens  of  the  United  States  from  the  shore 
"beyond  the  ordinary  distance  to  which  territorial  jurisdiction 
extends"  had  excited  still  greater  surprise,  he  inquired  whether  the 
Russian  nunister  was  authorized  to  give  explanation  of  the  grounds  of 
right,  upon  principles  generally  recognized  by  the  laws  and  usages  of 
luitions,  which  could  warrant  the  action  of  liussia.  U.  IS.  Case, 
Vol.  i,  A2}p.,  132.  It  is  clear  that  Mr.  Adams  did  not  interpret  the 
UkiJse  as  asserting  jurisdu-tion  over  IJering  Bea,  except  to  the  extent 
of  100  Italian  unles  from  the  coasts  specihed.  Kipudly  explicit  Avere 
the  declarations  of  the  American  Minister  at  St.  Petersburg,  who  in  a 
(tonfidential  memorandum  sent  to  Mr.  Adams,  said:  "The extension  <d' 
territorial  rights  to  the  distance  of  100  Italian  miles  upon  two  opposite 
continents,  and  the  prohibition  of  approaching  to  the  sanje  distance 
from  these  coasts,  or  from  those  of  all  the  intervening  islands,  are 
innovations  on  the  law  of  nations,  and  measures  unexampled."  Amer- 
ican State  Pa2)crs,  Vol,  -I,  p.  152. 

M.  Poletica,  February  28,  1822,  replied  at  some  length,  in  justifica- 
tion of  the  edict  promulgated  by  the  Emperor  of  liussia.  He  recited 
numerous  facts  which,  in  his  judgment,  sustained  the  claims  of  Kussia 
to  the  extent  specilied  in  the  regulations  for  the  Itussian-Ameriean 
Company — resting  the  title  of  his  Government  upon  first  discovery, 
lirst  occupancy,  and  peaceable,  uncontested  possession  for  more  than 
half  a  century  prior  to  the  independence  of  the  United  States.  In 
I'espect  to  the  territory  claimed  by  Kussia,  he  siiid  that  the  Imperial 
(Jovernmeut,  in  assigning  for  limits  to  the  Itussian  possessions  on  the 
northwest  coast  of  America,  on  the  (me  side  Bering  Strait  and  on 
the  other  the  lifty-first  degree  of  north  latitude,  has  only  made  a  mod- 
erate use  of  an  incontestable  right,  "since  the  llussian  navigators,  who 
were  the  lirst  to  explore  that  part  of  the  American  contiuout  iu  1741, 


>n,  111  ail 
to  .lolill 
^  replied, 
lie  l*iesi- 

tlie  part 
i  on  this 
,els  other 
iitioii,   to 

sliore  to 
he  exelu- 
he  shore 
risdiction 
uther  the 
rounds  of 
usages  of 

IS.  Cast', 
rpret  the 
he  extent 
licit  ^vere 
I  who  in  a 
iision  of 
p[)osite 

distance 
ids,  are 
Amer- 

ustlfica- 
reeited 
f  llussia 
,niericau 
Iscoveiy, 
ore  than 
ites.  In 
Imperial 
IS  on  the 
and  on 
e  a  luod- 
ora,  who 
ill  1741, 


71 

pushed  their  discovery  as  far  north  as  the  forty-ninth  degree  of  north 
iatitiule.''  Tlie  lil^y  (irst  degree,  therefore,  lui  said,  was  no  nutre  thau  a 
mean  point  between  tlie  I»u.ssian  establishment  of  New  Archangel,  situ- 
ated under  tlie  fifty  seventii  degree,  and  tlie  American  «'olony  at  the 
mouth  of  the  Columbia,  which  is  found  under  the  forty  sixth  degree  of 
thesanu^  latitude. 

To  what  extent  the  Ukase  was  intended  to  interfere  with  the  free 
use  of  the  waters  outside  of  ordinary  territorial  limits,  will  appear  in 
the  following  extracts  from  the  above  letter  of  M.  Toleticia  : 

"I  shall  be  morci  succinct,  sir,  in  the  exposition  of  the  motives  which 
determined  the  Imix'rial  (Toverninent  to  prohibit  foreign  vessels  from 
approaching  the  northwest  coast  of  America,  belonging  to  Kussia, 
within  the  distance  of  at  least  100  Italian  miles.  This  measure,  how- 
ever severe  it  may  at  first  view  appear,  is,  after  all,  but  a  measure  of 
])revention.  It  is  exclusively  directed  against  the  culi)able  enterprises 
of  foreign  adventurers,  who,  iM)t  content  with  exercising  ui)on  the 
coasts  above  mentioned  an  illicit  tra<le  very  iirejmlicial  to  the  rights 
reserved  entirely  to  the  liussian  American  (Jomitany,  take  upon  them 
besides  to  furnish  arms  and  ammunition  to  the  natives  in  the  liussian 
provinces  in  America,  exciting  them  likewise,  in  every  manner,  to 
resistance  and  revolt  against  the  authorities  there  established.  The 
American  Government  doubtless  recollects  that  the  irregular  conduct 
of  these  adventurers,  the  majority  of  whom  was  composed  of  American 
citizens,  has  been  the  object  of  the  most  pressing  '•emoustrances  on  the 
part  of  Russia  to  the  Federal  Government  from  the  time  that  di[)Ioniatic 
missions  were  organized  between  the  two  countries.  These  remon- 
straiices,  repeated  at  ditfeient  times,  remain  constantly  without  elfect, 
and  the  inconveniences  to  which  they  ought  to  bring  a  remedy  con- 
tinue to  increase.  *  *  *  Piieilic  means  not  having  brought  any 
alleviation  to  the  just  grievances  of  the  liussian  American  (Company 
against  foreign  navigators  in  the  waters  which  environ  the  establish- 
ments on  the  northwest  coast  of  America,  the  Imperial  Government 
saw  itself  under  the  necessity  of  having  recourse  to  the  means  of 
coercion,  and  of  measuring  the  rigor  according  to  the  inveterate  char- 
.xcter  of  the  evil  to  which  it  wished  to  put  a  slop,  V'efc,  it  is  easy  to 
discover,  upon  examining  idosely  the  hist  regulation  of  the  liussian- 
American  Oompjiny,  that  no  spirit  of  liostility  had  anything  to  do  with 
its  formation.  The  most  minute  precautions  have  been  taken  in  it  to 
prevent  abuses  of  authority  on  the  part  of  commanders  of  Unssian 


n 


72 


(•iMi><'is  :i]>|M)iiit('(l  for  tlic  cxccntioii  »»!'  siiid  rrji^nliilioii.  At  tho.  .siiiiio 
tiiiu',  it  lias  not  bron  itc^Icclcd  lo  j;ivo  all  llu'  timely  publicity  ru'ces- 
sary  to  put  tliosr  •ipun  tlirir  ^uard  a^ainsl  whom  the  iiu'asiiu;  isuimiul. 
Its  action,  tlicivl'ori',  can  only  ivAv.h  the  Ibicij^n  vessels  which,  iu  si)ito 
ot"the  iiotillcation,  will  expose,  themselves  to  seizure  by  inf'rin;;in{»  «/><*« 
the  line  morknl  out  iu  llu:  rniiihttioit.  'J'he  (Jovernment  llatters  itsi'lt' 
that  these  eases  will  be  very  rare;  if  all  renniiii  us  at  pi'esent  api)ears, 
not  one. 

'•  I  oii';ht,  in  the  last  place,  to  re(piest  you  to  <onsid<^r,  sir,  that  the 
Uussiau  possessions  in  the  Pacilic,  Ocean  extend,  on  the  northwest 
(M>as(  of  America,  from  JJeriiiji;'  Strait  to  the  litty-lirst  def;ree  of  north 
latitude,  and  on  the  oi)posit(;  side  oi'  Asia  and  the  islands  adjacent 
from  the  same  strait  to  the  fortylifth  de};re(^  The  extent  of  sea  to 
which  these  possessions  form  (he  limits,  comprehends  all  the  conditions 
attached  to  slnit  «/■««  ('meis  fermees'),  and  the  Russian  (jovernment 
uii^ht  consetpiently  judj;e  itself  authorized  to  exercise  upon  this  sea 
the  rif;l!t  of  sovereignty,  and  espeiMally  that  of  entirely  interdictiuj^ 
the  entrance  of  foreif;iiers.  lint  it  in'c/orred  asscrtiiKj  oiili/  its  essential 
ri(/Itts,  with()Ut  taking;  any  ad\antaj;e  of  localities."  Brilinh  (Juse, 
Vol.  J,  App.,pp.  M,  30;    U.  IS.  Case,  Vol.  1,  App.,  mi. 

Ecjually  explicit  were  the  declarations  made  by  the  Russian  Gov- 
ernment, to  the  IJritish  Clovernment,  in  an  ollicial  communication,  dated 
iS'oveniberl-,  1821,  addressed  by  IJaron  Nicolay,  the  Russian  Ambassa- 
dor at  London,  to  the  Manjuis  of  Lon(h)nderry,  then  at  the  head  of  the 
British  Foreign  OlUce.  After  referring  to  the  complaints  which  the 
operations  of  smugglers  and  adventurers  along  the  tiorthirest  coast  of 
America  belonging  to  Russia  have  more  than  once  given  rise  to,  which 
oi)erations  had  tor  their  object  "afrandulentcomnu>rce  in  furs  and  other 
articles  which  are  exclusively  reserved  to  the  Rtisso-American  Com- 
pany," and  betrayed  a  purpose  to  excite  resistance  or  revolt,  upon  the 
part  of  the  natives,  to  established  authority,  iiaron  Nicolay  said: 

"It  was,  theretbre,  necessary  to  take  severe  measures  against  these 
intrigues,  and  to  ju-otect  the  company  against  the  hurtful  prejudices 
that  resulted,  and  it  was  with  that  end  iu  view  that  the  annexed  regu- 
lation has  just  been  i)ublished. 

'■'•This  nen-  regulation  does  not  forbid  foreign  vessels  to  navigate  the 
seas  that  tcask  the  shorts  of  the  Kiissiiin  Fossessions  on  the  northwest 
coast  of  America  and  the  northeast  coast  of  Asia.  Such  a  prohibition — 
which  it  would  not  have  been  dillicult  to  enlbrce  with  asufticient  naval 
force — would,  of  a  truth,  have  been  the  most  efficacious  means  of  pro- 


78 


Icl  regu- 


\f(te  the 
•thiccst 

litiou— 

usvval 

)f  pro- 


tecting the  interests  of  the  Knsso  Amcrieaii  Company;  and,  moreover, 
it  woiiiil  a|>|H>ar  to  be  based  upon  iii(U)titestab[e  rigiits.  For,  on  tlie 
one  liand,  to  remove  all  foreign  ships,  on<;e  for  all,  from  the  «M)ast  abovti 
referred  to,  would  b«i  to  put  an  end  forev -r  to  the  illegal  operations 
whieli  it  is  iieeossiiry  to  prevent.  On  tlm  other  hand — considering  tlie 
Knssiiin  possessions,  wiiich  extend  on  the  northwest  eoast  of  America 
from  the  IJering  Sti'ait  t.>  the  (ifty-tii-st  »legr»'e  of  north  latitude,  as 
well  ius  on  the  coast  of  Asia  op[)osite  and  on  the  adjacent  islands,  from 
the  same  strait  to  irp — it  can  not  ln!  denied  that  the  sea  of  which  these 
possessions  form  the  t)()unds  embraces  all  the  conditions  that  the  most 
widely  known  and  best  aiuiredited  i>ublicjst,s  have  attached  to  the 
delinition  of  a  closed  sea,  and  that,  therefore,  the  liussian  (lovtirnment 
has  perfect  autliority  to  exercise  the  rights  of  sovereignty  over  that  sea 
and  particularly  that  of  forbidding  the  approa<'h  of  foreigners.  Never- 
theless, however  important  the  considerations  nniy  have  been  that 
claimed  such  a  measure,  however  legit imatii  such  a  measuns  would  in 
itself  have  been,  the  Ernperial  (Jovernment  did  not  wish,  on  this  occa- 
sion, to  exercise  a  i>ow«^r  which  is  assured  to  it  by  the  nntst  sacred  title 
of  possession,  and  which  is,  besides,  conlirmed  by  irrefragable  anthor- 
iti'  s.  '"le  (Jovernment,  however,  limited  itncl/—a.ii  can  be  seen  by  the 
newly  published  regulation — to  forbidding  all  foreign  vessels  not  only 
to  land  on  the  settlements  of  the  American  Company,  and  on  the 
Pciiinsuhi  of  Kamschatica  and  tiie  coasts  of  the  Okhotsk  Sea,  but  also 
to  sail  nlonf)  the  coant  of  these  possessicms,  and,  as  a  rule,  to  iqtprouch 
them  icithinlOO  [talian  miles. 

"  Vessels  of  the  lmi)erial  Marine  have  just  been  sent  to  see  that  thiy 
arrangement  is  (-arried  out.  The  arrangement  appears  to  us  to  be  as 
lawful  as  it  is  uigent.  For,  if  it  is  shown  that  the  Imi>erial  (lovern- 
ment  had  strictly  the  right  to  close  to  Ibreigners  that  i>ortion  of  the 
I'acilic  Ocean  which  is  bounded  by  our  jxjssessions  in  America,  and 
Asia,  a  fortiori  the  right  in  virtue  of  which  it  has  just  adopted  a  mnch 
len>i  restrictire  mtmure  should  not  be  called  in  question.  This  right, 
in  effect,  is  universally  admitted,  and  all  nuiritime  powers  have  exer- 
cised it  more  or  less,  iu  their  colonial  system."  Britinh  Case,  Vol.  2, 
Ap]).,  p.  1. 

These  olticial  declarations  of  the  liussian  Govermment  through  its 
accredited  representatives  are  in  harmony  with  the  words  of  the  Ukase 
of  1821.  They  show:  (1)  That  the  object  of  that  Ukase  was  to  prevent 
foreigners  (to  use  the  language  of  M.  de  Polctica)  "from  exercising  upou 


74 


I  •.' 


m. 


I 


tlie  coasts  above  iiientioned  an  illicit  trade  vt'i-y  prejiKlicial  to  tlie  rights 
resei'ved  entirely  to  the  liiissiaii-Aiiiciican  (ionipany,"  and  from  fur- 
nishing "arms  and  animnnition  to  the  natives  in  the  Russian  possessions 
in  America,"  and  (to  use  the  lan<;iia.ii"e  ol'  IJiiroii  Xicolay)  from  landing 
*'on  the  settlements  of  the  American  <'omi)any,  and  on  the  Peninsula 
of  Ivamschatka  and  the  coasts  of  Okhotsk  Sea,  and  from  sailing  along 
the  coasts  of  tlntse  possessions,  and,  as  a.  rule,  from  approaching  tliem 
within  100  Italian  miles."  (2)  That,  in  order  to  accomplish  those  ends? 
foreign  vessels  were  not  to  infringe  upon  "the  line  marked  out  in  the 
regulations,"  and  therelbre  not  to  ai»i)roach  the  coasts  within  a  less 
distance  than  that  specilied.  (3)  That  while  llussia  claimed  that  it 
c<»uld  justly  assert  the  rights  of  sovereignty  over  all  the  waters 
between  the  North  American  and  Asintic  Continents,  from  liering  Strait 
to  the  tifty-iirst  degree  of  north  latitude  on  the  American  side,  and 
from  the  same  strait  to  the  forty-llfth  degree  of  north  latitude  on  the 
Asiatic  side,  it  limited  in  the  Ukase  of  ISiil  its  actual  assertion  of 
sovereignty  over  the  waters  within  or  inside  of  a  (HMtain  line.  It 
conseiiueiitly  declared  that  the  Ukase  of  1S2I  had  reference  only  to 
the  waters  within  UK)  Italian  miles  from  the  coasts  mentioned. 

Additional  proof  of  all  this  is  Ibiind  in  the  letter  of  Mr.  Adanis,  the 
American  Secretary  of  State,  of  March  .'50,  1.SU2,  rei>lying  to  the  above 
communication  from  I\l.  Poletica,  and  in  the  latter  of  M.  roleti<'a  to 
Mr.  Adams,  dated  April,  A.  I).  1S22.  Mr.  Adams,  in  his  letter,  said: 
"With  regard  to  the  suggestion  that  the  liussiau  Government  might 
have  Justilied  the  exercise  of  sovereignty  over  tlie  Pacilic  Ocean  as  a 
close  sea,  bcrause  it  claims  territory  both  on  its  American  and  Asiatic 
shores,  it  may  sul1i(;e  to  say  that  the  distance  from  shore  to  shore  on 
this  sea,  in  the  latitude  of  51  degrees  north,  is  iu)t  less  than  90  degrees 
of  longitude  or  4,000  miles."  To  this  M.  Poletica  resjionded  :  "In  the 
same  nnmner  the  great  extent  of  the  Pacific  Ocean  at  the  filty-lirst 
degree  of  north  latitude  can  not  invalidate  the  right  which  Kussia  may 
have  of  considering  tiiat  |)ar(  of  the  oceiin  as  dose.  Hut  as  the 
Imperial  (iovernmont  has  not  thought  it  lit  to  take  advantage  of  that 
right,  all  further  discussion  on  this  subject  would  be  idle."  U.  S. 
Catic,  Vol  1,  App.,  131,  Vk'). 

The  next  point  in  Article  Vl  to  be  considered  is  that  involved  in  the 
incpiiiy: 

"  Iloic  far  ircrc  ihrsf  claims  of  jiirinfliclion  <f,v  to  the  ncal  Jishcfies 
rcco(jaizid  and  conceded  by  Otral  BriUiinl' 


lie  rights 
roiii  fur- 
^sessions 
landing" 
eninsula 
iiy  along 
iiig  tlu'ni 
)se  ends, 
it  in  tlie 
in  a  less 
.1  that  it 
li   waters 
ng  Stiait 
^^ide,  and 
le  on  the 
ertion  of 
line.      It 
i;  only  to 
[. 

lams,  the 

lie  above 

etica  to 

^r,  said: 

.  might 

an  as  a 

Asia-tic 

hove  on 

(h'grccs 

In  the 

ifty-lirst 

■isia  may 

as  tlie 

of  that 

U.  S. 

d  ill  the 
fisheries 


75 

The  use  here  of  the  word  "jurisdiction"  creates  some  doubt  as  to 
the  precise  object  of  tlie  questiou.  But  it  must  be  assumed  that  the 
purpose  was  to  ascertain  whether,  in  the  Judgment  of  this  Tribunal, 
Great  Hiitain  recognized  and  conceded  any  (;hiim  of  jurisdiction,  upon 
the  part  of  Kussia,  over  the  waters  of  Bering  Sea,  or  over  any  lish- 
eiies  in  tliat  sea,  outside  of  the  ordinary  limit  of  territorial  waters. 
So  interpreting  the  (juestion,  1  have  no  doubt  of  tlie  ai'swer  which 
must  be  made  to  it.  The  otticial  corres[>oiideiiee  between  the  gov- 
ernments of  (Jreat  Britain  and  Kussia  shows  that  throughout  the 
whole  of  the  negotiations  following  the  Ukase  of  1821,  and  result- 
ing ia  the  treaty  of  182;"»,  Great  Britain  stood  lirmly  by  the  posi- 
tion, not  only  that  the  territorial  jurisdiction  asserted  by  Russia 
on  the  northwest  coast  was  in  excess  of  what  it  was  entitled  to 
claim,  but  that  the  prohibition  by  that  Ukase  of  the  ajiproach  of 
foreign  vessels  nearer  than  100  Italian  miles  to  those  coasts  was 
an  assertion  of  sovereignty  over  the  open  waters  of  the  Sea,  which 
was  forbidden  by  the  established  principles  of  int<'riiatioiial  law. 

Let  us  see  what  was  recognized  and  conceded  by  Great  Britain  dur- 
ing her  negotiations  wall  llussia. 

In  hiscommuaicationof  .laimary  18, 1822,  addressed  to  Count  Lieveu, 
the  Itussian  Ainbassadur  at  London,  in  rejily  to  the  letter  of  Baron  ^^ico- 
lay,  covering  a  copy  of  the  Ukase  of  1821,  the  Marcpiis  of  Londonderry, 
then  at  the  head  of  the  British  Foreign  Ollice,  said:  "Upo;i  the  subject 
of  this  Ukase  generally,  and  esjiecially  upon  the  two  main  principles  of 
claim  laid  down  therein,  viz,  an  exclusive  sovereignty  alleged  to  beh)iig 
to  Itussia  over  the  territories  therein  described,  as  also  the  exclusive 
right  of  navigating  and  trading  within  the  maritime  limits  therein  set 
forth,  llis  Biitainii*  Majesty  must  be  understood  sis  hereby  reserving 
all  his  rights,  not  being  iirepared  to  admit  that  the  intercourse  which  is 
allowed  on  the  face  of  this  iiistrumeiit  to  have  hitherto  subsisted  on 
those  coasts,  and  in  those  seas,  (!an  be  deemed  to  be  illicit,  or  that  the 
shiiis  of  friendly  jiowers,  even  supposing  an  uiKiualilied  sovereignty  was 
proved  to  appertain  to  the  Im[)erial  Crown  in  the  vast  and  very  imper- 
fectly occupied  territories,  could,  by  the  acknowledged  laws  of  nations, 
be  excliuled  from  navigating  within  the  distance  of  100  Italian  miles  as 
therein  laid  down,  from  the  coast,  the  exclusive  dominion  of  which  is 
assumed  (but,  as  llis  Majesty's  Government  conceive,  in  error)  to  belong 
to  llis  Imperial  IMajesty,  the  Emperor  of  all  the  Kussias."  British 
Case,  To/.;?  Apj^.,  11 


76 


Subsequently,  September  27,1822,  Mr,  George  Canning,  tlie  auccessor 
of  Lord  Londonderry,  in  the  British  Foreign  Office,  writing  to  tlie  Duke 
of  Wellington,  wlio  had  been  commissioned  to  acquaint  the  Kussian 
Government  with  the  views  held  by  the  British  Government  said 
that  with  respect  to  the  points  in  the  Ukase  which  had  the  effect  of 
extending  the  territorial  rights  of  Itussia  over  the  adjacent  seas  to 
the  "  unprecedented  "  distance  of  100  miles  from  the  line  of  coast,  and 
of  closing  a  hitherto  unobstructed  passage  (through  Bering  Straits), 
at  that  time  the  object  of  important  discoveries  for  the  promotion  of 
general  commerce  and  navigation,  those  pretensions  were  considered 
by  the  best  legal  authorities  as  positive  innovations  on  the  right  of 
navigation,  and  as  such,  could  receive  no  explaiuitiou  from  further 
discussion,  nor  by  any  possibility  be  justirted.  Common  usage,  he  said, 
which  has  obtained  the  force  of  law,  had  indeed  assigned  to  coasts  and 
shores  an  accessorial  boundary  to  a  shor>  limited  distance  for  i)urposes  of 
protection  and  general  convenience,  in  ).u  manner  interfering  with  the 
rights  of  others,  and  not  obstructing  tl  e  freedom  of  general  couunerce 
and  navigation.  But  that  important  qualification,  he  observed,  the 
extentofliussia's  claim  entirely  excluded,  and  when  such  a  prohibi- 
tion was  applied  to  a  long  line  of  coasts,  and  also  to  intermediate 
islands  in  remote  seas,  where  navigation  was  beset  with  innumerable 
and  unfoieseen  dilUculties,  and  where  the  principal  employment  of  the 
lisheiies  must  be  pursued  under  circumstances  that  were  incompatible 
with  the  prescribed  courses, "  all  particular  considerations  concur,  in  an 
esi)ecial  manner,  with  the  general  principle,  in  repelling  such  a  preten- 
sion as  an  encroachmeut  on  the  freedom  of  navigation,  and  the  inalien- 
jible  rights  of  all  nations."  He  expressed  satisfaction  in  believing 
from  a  (jonferenco  which  he  had  had  with  Count  Lieven  that  upon 
these  two  points — "the  attempt  to  shut  up  the  passage  altogether, 
and  the  claim  of  exclusiv^e  dominion  to  so  enormous  n.  distance  from 
the  coast — the  Kussian  Government  are  prepared  entirely  to  waive  their 
l)retensions."    liritifih  Case,  Vol.  II,  App.,  22. 

After  receiving  this  letter,  the  Duke  of  Wellington,  November  28, 
1822,  delivered  to  Count  Nesselrode,  at  the  head  of  the  Kussian  min- 
istry, a  confidential  memorandum,  in  wliicii  ue  objected  first,  to  the 
claim  of  sovereignty  set  forth  in  the  Ukase;  and,  secondly,  to  the  nuide 
in  which  it  is  exercised.  "'IMiebest  writers  on  the  laws  of  nations," 
he  observed,  "do  not  attribute  exclusive  sovereignty,  particularly 
of  continents,  to  those  who  have  first  discovered  them,  aud  although 


accessor 
he  Duke 
Eussian 
But  said 
effect  of 
.  seas  to 
)ast,  aud 
Straits), 
lotiou  of 
nsidered 
right  of 
I  further 
,  he  said, 
)asts  aud 
rposes  of 
with  the 
omuierce 
ved,  the 
l)rohibi- 
rmediate 
iiuej'able 
ut  of  the 
mpatible 
ur,  iu  au 
preten- 
iualieu- 
lieving 

it   U()()U 

ogether, 
ce  froiu 
ve  their 

iber  28, 
au  luiu- 
to  the 
le  mode 
itions," 
icuhirly 
though 


77 

we  might  on  good  grounds  dispute  with  IJussia  the  priority  of  dis- 
covery of  these  continents,  we  contend  that  the  uiuch  more  easily 
proved,  more  conchisive,  aud  more  certain  tith'  of  occnpatiou  and  use 
ouglit  to  decide  the  chiini  of  sovereignty."  He  explicitly  declared 
tliat  Great  Britain  could  not  Jidjnit  the  right  of  any  power  jiossessing 
the  sovereignty  of  a  country  to  exclude  the  vessels  of  others  from 
the  seas  on  its  coasts  to  the  distrince  of  100  Italian  miles.  British 
Case,  F-'  II,  p.  23. 

The  Duke  of  Wellington,  writing  on  the  same  day  to  Count  Lieven 
and  repeating  the  objection  of  the  British  Government  to  the  Ukase, 
so  far  as  it  assumed  for  Russia  au  exclusive  sovereignty  in  the  conti- 
nent of  North  Ameriiia,  observed:  "The  second  ground  on  which  wo 
object  to  the  Ukase  is  that  His  Imperial  Majesty  thereby  excludes  from 
a  certain  consitlerable  extent  of  the  open  sea  vessels  of  other  nations. 
We  contend  that  the  assumption  of  this  power  is  contrary  to  the  law 
of  luvtions,  and  we  cannot  found  a  negj-uiation  upon  a  paper  in  which 
it  is  again  broadly  asserted.  AVe  contend  that  no  power  whatever  can 
exclude  another  from  the  use  of  the  open  sea.  A  i)ower  can  exclude 
itself  from  the  navigation  of  a  certain  coast,  sea,  etc.,  by  its  own  actor 
engagement,  but  it  cannot  by  right  be  exiduded  by  another."  British 
Case,  Vol.  II,  A  pp.  25. 

I  am  unable  to  find  a  single  sentence  in  all  the  diplomatic  corre- 
spondence that  took  place  between  Russia  and  Great  Britain,  touching 
the  Ukase  of  1821,  showing,  or  tending  to  show,  that  Great  Britain 
moditted,  in  the  slightest  degree  the  position  taken  by  its  representa- 
tives from  the  very  outset,  namely,  that  the  maritime  jurisdiction  or 
authority  claimed  by  Russia,  upon  whatever  ground  rested,  to  the 
extent  of  100  Italian  miles  from  its  coasts,  was  inconsist«Mit  with  the 
law  of  nations.  On  the  contrary,  after  th<'  expiration  of  more  than 
two  years  without  an  agreement  being  reached  as  to  the  disputed 
questions  of  maritime  sni^remacy  and  te.iitorial  sovereignty,  and  when 
serious  ai)preliensious  were  felt  that  no  satisfactory  solution  of  those 

• 

questior-'  would  be  reached,  M'".  Stratford  ('aiming  was  sent  by  the 
British  Government  to  St.  retersbiirg  as  IMenipotentiary  to  effect,  if 
possible,  a  settlement  of  the  pending  dispute.  He  received  a  letter 
of  instructions  from  Mr.  George  Canning,  in  which  will  bo  found  au 
extended  review  of  all  ])revious  efforts  to  a»!coininodate  the  differences 
between  the  two  countries,  and  a  fall  statement  of  the  grounds  upon 
whicli  Great  Diitain  stood  in  respect  to  this  Ukase. 


^  111 

1 1 


S' 


78 

If  luiy  doubt  could  arise  from  previous  correspond  once  as  to  whether 
Great  Britain  reco{?nized  and  conceded  any  jurisdiction  upon  the  part 
of  Russia  in  the  waters  of  Bering  Sea,  outside  of  ordinary  territorial 
limits,  as  those  limits  arc  doUned  by  international  law,  that  doubt  will 
be  removed  by  the  examination  of  the  letter  of  Mr.  George  Canning  to 
Mr.  Stratford  Canning,  of  December  8,  USUI,  which  was  after  the  Treaty 
of  1824  between  the  United  States  and  llussia  was  signed.  That  letter, 
inclosing  ii2>ro}et  of  settlement,  ?s  too  lengthy  to  be  inserted  in  full  here, 
and  the  foHowing  extract  from  it  must  suffice: 

"  The  whole  negotiation  grows  out  of  the  Ukase  of  1821.  So  entirely 
Jind  absolutely  true  is  this  pro])osition  tlmt  the  settlement  of  the 
limits  of  the  respective  possessions  of  Great  IJritnin  and  IJussia  on  the 
Northwest  coast  of  America  was  pioposed  by  us  only  as  a  mode  of 
facilitating  the  adjustment  of  the  ditteience  arising  from  the  Ukase  by 
enabling  the  Court  of  llussia,  under  tiie  cover  of  a  more  comprehen- 
sive arrangement,  to  Avithdraw,  with  less  api)earanco  of  concession, 
the  olTensive  pretensions  of  thiit  edict.  It  is  comparatively  indifferent 
to  us  whether  we  hnsteu  or  |,  istpone  all  questions  respecting  the 
limits  of  territorinl  possession  on  the  continent  of  America,  but  the 
pretensions  of  the  Hussinn  Ukase  of  1821  to  exclusive  dominion  over 
the  Pacific  could  not  continue  longer  unrepealed  without  compelling 
us  to  take  some  measure  of  public  and  effectual  remonstrance 
agiiinst  it.    *     * 

"  That  this  Ukiise  is  not  acted  upon,  and  that  instructions  have  been 
long  ago  sent  by  the  Russian  Government  to  their  cruisers  in  the 
Pacific  to  suspeiul  the  execution  of  its  provisions,  is  true;  but  a  pri- 
vate disavowal  of  a  published  claim  is  no  security  against  the  revival 
of  that  claim.  The  sus])ension  of  the  execution  of  a  principle  may  bo 
perfe(!tly  compatible  with  the  continued  maintenance  of  the  principle 
itself,  and  when  we  have  seen  in  the  course  of  this  negotiation  that  the 
Russian  claim  to  the  possession  of  tliecoast  of  America  down  to  lati- 
tu<le  ilOo  rests  in  fact  on  no  other  ground  thnn  the  prcsume<l  acfpiies- 
cence  of  the  nations  of  Europe  in  the  pro\  isions  of  the  Ukase  pub- 
lished by  the  Emperor  Paid  in  the  year  1800  [1799],  against  which  it 
is  afllrmed  that  no  jjublic  remonstrance  was  made,  it  becomes  us  to  bo 
exceedingly  careful  tlrnt  we  do  not,  by  a  similar  neglect,  on  the  pres- 
ent occasion  allow  a  similar  presumption  to  be  raised  as  to  an  acquies- 
cence in  the  Ukase  of  1821.  The  right  of  the  subjects  of  His  Majesty 
to  navigate  freely  in  the  Pacific  cau  not  be  liehl  as  a  matter  of  indul- 


79 


ive  been 
in  the 

t  a  pri- 
levival 

iiiiiy  be 

riiuiplo 
liat  the 
to  lati- 

U'quics- 

•ie  pub- 
liicli  it 
IS  to  bo 
e  pres- 
cqnicH- 
lajcsty 
iiidul' 


jyence  from  any  power.  TTavingoncc  been  i^nblicly  questioned  it  must 
be  i)nblicly  acknowledj^cd.    *     •    * 

"It  will,  of  course,  strike  the  llussian  plenipotentinrics  that  by  the 
adoption  of  the  Aiuericau  article  respectlnj;'  navigation,  etc.,  the  pro- 
vision for  -an  exclusive  fishery  of  two  leagues  from  the  coasts  of  our 
respective  possessions  falls  to  the  ground.  But  the  omission  is,  in 
truth,  immaterial.  The  law  of  nations  assigns  the  exclusive  sovereignty 
of  one  league  to  each  power  on  its  own  coasts,  without  any  specific  stipu- 
lation, and  though  Sir  Charles  Hagot  was  authorized  to  sign  the  con- 
vention with  the  specifi*;  stipulation  of  two  leagues,  in  ignorance  of  what 
had  been  decided  in  the  American  convention  at  the  time,  yet,  after 
that  convention  has  been  some  months  before  the  world,  and  after  the 
opportunity  of  consideration  has  been  forced  upon  us  by  the  a(;t  of 
Kussia  herself,  we  can  not  now  consent  in  negotiating  de  )iovo  to  a  stipu- 
lation which,  while  it  is  absolutely  unimportant  to  any  practical  good, 
would  appear  to  establish  a  contrast  between  the  TJnitcMl  States  and  us 
to  our  disadv^antage.  Count  Nessi^lrode  himself  has  fniidvly  admitted 
that  it  was  natural  that  we  shouhl  exi)ect,  and  reasonable  that  we 
should  receive,  at  the  hands  of  Kussia,  equal  measure  in  all  respects, 
with  the  United  States  of  Anunica. 

"It  remains  only,  in  recapitulatioti,  to  retnind  you  of  the  origin  and 
jirinciples  of  the  whole  negotiation.  Tt  is  not  on  our  part  essentially  a 
negotiation  about  limits.  It  is  the  demand  of  the  repeal  of  an  oft'onsive 
and  unjustiiiable  arrogation  of  exclusive  jurisdiction  over  an  ocean  of 
unmeasured  extent,  but  a  demand  (lualifu'd  and  mitigated  in  its  manner 
in  order  that  its  justice  may  be  acknowledged  and  satisfied  witlnuit 
soreness  or  humiliaticin  on  the  part  of  Russia.  We  negotiate  about 
territory  to  cover  the  renu)nstrani!e  tipon  principle.  But  any  attenipt 
to  take  undue  advantage  of  this  voluntary  facility  we  must  oi>poso. 
If  the  present  ^projct''  is  agreeable  to  Ilussia,  we  ;ire  ready  to  conclude 
and  sign  the  treaty.  If  the  territoriid  ariangements  are  not  satis- 
factory, we  are  ready  to  jtostpone  them;  and  to  conclude  and  sign  the 
essentiid  part,  that  which  relates  to  navigation  alone,  adding  an  article, 
stipulating  to  negotiate  nbojit  territorial  limits  hereafter.  But  we  are 
not  i)rei)iircd  to  defer  any  longei-  the  settlement  of  that  essential  part 
of  the  (pjestion,  and  if  Itussia  will  neither  sign  tlie  whole  (convention 
\WY  that  essential  part  of  it.  she;  must  not  take  it  amiss  that  we  resort 
to  some  mode  of  recording  in  the  face  of  tlu^  world  our  protest  agiiinst 
the  i)retensions  of  the  I'kase  (»|'  ISJI,  and  of  ellcilually  securing  our 


m' 


80 

own  interests  ayiiiiist   (lie  possibility  of  its  (nturc  operation."     British 
Case,  Vol.  ii,  App.,  73. 

The  opposition  of  Great  Iiritain  to  Russia's  claim  of  maritime  su 
preniaey  within  100  Italian  miles  from  the  coasts  mentioned  in  the 
Ukase  of  ISli!  was  not  more  deiaded  or  persistent  than  that  of  the 
United  States.  The  action  taken  by  the  United  States  is  not  irrele- 
vant to  the  present  discnssion,  because,  as  will  presently  appear,  its 
counsel  insists  that  Russia's  treaty  of  1825  with  Great  Britain  is  to  be 
inter])reted  to  mean  Just  what  the  treaty  of  1824  with  the  United  States 
was  understood  by  Russia,  with  the  knowledge  of  the  United  States, 
to  mean. 

Referring  to  the  reascms  assi{?ned  by  M.  Poletica  upon  which  Russia 
based  the  territorial  and  nmritimo  claims  asserted  in  that  Ukase,  Mr. 
Adams,  the  American  Secretary  of  State,  said,  in  reply:  "This  pre- 
tension is  to  be  considered  not  only  with  reference  to  the  question  of 
territorial  right,  but  also  to  that  i)rohibition  to  the  vessels  of  other 
imtions,  including  those  of  the  United  States,  to  approach  within  100 
Italian  miles  of  the  coasts.  From  the  period  of  the  existen(!e  of  the 
United  States  as  an  indei)eudent  nation,  their  vessels  have  freely 
navigated  those  seas,  and  the  right  to  navigate  them  is  a  part  of  that 
indcpcn<lcnce."  Again:  "As  little  can  the  United  States  accede  to 
the  .justi<'e  of  the  reason  assigned  for  the  prohibition  above  mentioned. 
The  rightof  the  citizens  of  the  United  States  to  hold  commerce  with  the 
aboriginal  natives  of  the  northwest  coast  of  America,  without  the  terri- 
torial jurisdiction  of  other  nations,  even  in  arms  and  munitions  of  war, 
is  as  clear  and  indisputable  as  that  of  navigating  the  seas.  That  right 
has  never  been  exercised  in  a  spirit  unfriendly  to  Russia ;  and,  although 
general  complaints  have  occasionally  been  made  on  the  subj(!(;t  of  this 
commerce  by  some  of  your  predecessors,  no  specific  ground  of  charge 
has  ever  been  alleged  by  them  of  any  transaction  in  it  by  whicdi  the 
United  States  were,  by  the  ordinary  laws  and  usages  of  nations,  bound 
either  to  restrain  or  punish.  Had  any  such  chaige  been  made,  it  would 
have  received  the  most  pointed  attention  of  this  Government,  with  the 
sincerest  and  firmest  disposi.ion  to  perform  every  act  p.wU  obligation  of 
justi(!e  to  yours  which  could  have  been  required.  I  am  commanded  by 
the  President  of  the  United  States  'o  assure  you  that  this  disposition 
will  continue  to  be  entertained,  togt  thor  with  the  earnest  desire  that 
the  harmonious  relations  betv.ocii  '.he  two  countfies  may  be  preserved. 


lirilinh 


line  su 

in  tlio 

t  of  the 

it  irrele- 

[jCiir,  its 

is  to  be 

il  States 

States, 

I  llnssia 
ase,  iMr. 
'his  pre- 
i'stion  of 
of  other 
thin   100 
5e  of  the 
e  freely 
t  of  that 
ecede  to 
ntioned. 
with  the 
le  terri- 
of  AS'ar, 
at  rij-ht 
ilthoiif"!! 
of  this 
(•,harjj;e 
liich  the 
I,  l)onntl 
It  would 
rith  the 
lation  of 
Ided  by 
|)osition 
le  that 
Iserved. 


81 

Relying  npon  the  assurance  in  your  note  of  similar  dispositions  recip- 
rocally entertained  by  Ilis  Imperial  Majesty  towards  the  United 
States,  the  President  is  persuaded  that  the  citizens  of  this  Union  will 
remain  unmolested  in  the  prosecution  of  their  lawful  commerce,  .and 
that  no  eftect  will  be  given  to  an  interdiction  manifestly  incompatible 
with  their  rights."     U.  S.  Case,  Vol.  1,  App.,  131. 

Mr.  ]Vfiddleton,  the  American  minister  at  St.  Petersburg,  writing  to 
Mr.  Adams  under  date  of  August  8,  1832,  said:  "To  Mr.  Speransky, 
Governor-General  of  Siberia,  who  had  been  one  of  the  committee  origi- 
nating this  measure,  1  stated  my  objections  at  length.  He  informed 
me  that  the  first  intention  had  been  (as  M.  Poletica  afterward  wrote 
you)  to  declare  the  northern  i)ortion  of  the  Pacific  Ocean  as  mare 
chinsiim,  but  that  idea  being  abandoned,  probably  on  account  of  its 
extravagance,  they  determiiuKl  to  adopt  the  more  moderate  measure  of 
establishing  limits  to  tlie  maritime  jurisdiction  on  their  coasts,  such  as 
should  secure  to  the  Kussiaii  American  Fur  Company  the  monopoly  of 
the  very  lucrative  traffic  they  carry  on.  In  order  to  do  this  they 
sought  .a  precedent  and  found  the  distance  of  30  leagues  named  in  the 
treaty  of  Utrecht,  and  which  maybe  calculated  at  about  100  Italian 
miles,  sufficient  for  all  purposes.  I  replied  ironically  that  a  still  l)etter 
precedent  might  have  been  pointed  out  to  them  in  the  papal  bull  of 
1493,  which  establislied  as  a  line  of  demarcation  between  the  Spaniards 
and  Portuguese  a  meridian  to  be  drawn  at  the  distance  of  100  miles 
west  of  tlie  Azores,  and  that  the  expression  'Italian  miles'  used  in  the 
Ukase,  very  naturally  might  lead  to  the  conclusion  that  this  was  actually 
the  precedent  looked  to.  He  took  my  remarks  in  good  part,  and  I  am 
disposed  to  think  that  this  conversation  led  him  to  make  reticctions 
which  did  not  tend  to  confirm  his  first  im])rcssii)ns,  for  I  found  him 
afterwiird  at  dificrcnt  times  spciiking  confidentially  upon  tlui  subject. 
For  some  time  past  I  began  to  perceive  that  the  provisions  of  tlie  Ukase 
would  not  bo  persisted  in.  It  appears  to  have  been  signed  by  tiie 
Emperor  without  sulficient  examination,  and  may  be  fiiirly  considered 
as  having  been  surreptitiously  obtained.  Tliere  can  bo  little  doubt, 
therefore,  that  with  a  little  patience  and  management  it  will  be  molded 
into  a  less  objectionable  shape."     U.  S.  Case,  Vol.  1,  App.  13G. 

But  this  is  not  at  all.  Mr.  Adams,  writing  to  Mr.  Middleton,  under 
date  of  July  22,  1823,  said:  "From  the  tenor  of  the  Ukase  the  pre- 
tensions of  the  Imperial  Govcrumcnt  extend  to  an  exclusive  territorial 
11492 6 


82 


•  i..i 


jurisdiction  from  the  forty-flftb  degree  of  north  latitude,  on  the  Aalastic 
coast,  to  the  hititude  of  liftyoue  nortli  on  the  western  coast  of  the 
American  continent;  and  tliey  assume  the  riglit  of  interdicting  the 
navigation  and  the  fishery  of  all  other  nations  to  the  extent  of  100 
miles  from  the  whole  of  the  coast.  The  United  States  can  admit  no 
])art  of  these  claims.  Their  right  of  navigation  and  of  fisiiing  is  i»er- 
fect,  and  lias  been  iu  constant  exercise  from  tlie  earliest  times,  after  the 
peace  of  17815,  throughout  the  wliole  extent  of  tlie  Southern  Ocean, 
subject  only  to  the  ordinary  exce])tionsand  exclusions  of  the  territorial 
jurisdictions,  whicli,  so  far  as  Russian  rights  are  concerned,  are  con- 
lined  to  certain  islands  nortli  ol'  the  lil'ty-liftii  degree  of  latitude,  and 
have  no  existence  in  the  continent  of  America."  Lf.  S.  Case,  Vol.  1, 
App.,  i41. 

As  tending  further  to  show  the  construction  placed  by  the  United 
States  upon  tlie  Ukase  of  1821,  and  its  decided  opposition  to  the  iire- 
tensions  of  Russia,  reference  may  be  made  to  the  letter  of  Mr.  Adams, 
written  under  date  of  July  23, 1823,  to  JNIr.  Rush,  the  American  minister 
at  Loudon.  In  that  letter  Mr.  Adams  said:  "By  the  Ukase  of  the 
Emperor  Alexander  of  the  -Ith  (Kith)  of  September,  1821,  an  exclusive 
territorial  right  on  the  northwest  coast  of  America  is  asserted  as  be- 
longing to  Russia,  and  as  extending /row?  the  northicest  extremity  of 
the  continent  to  latitude  51°,  and  the  navigation  and  fishing  of  all  other 
nations  are  interdicted  by  the  same  Ukase  to  the  extent  of  WO  ItaJiim 
miles  from  the  coast.  When  M.  Poletica,  the  late  Russian  minister  hero, 
was  called  upon  to  set  forth  the  groiuids  of  right  conformable  to  the 
laws  of  natious  which  authorized  the  issuing  of  this  decree,  he  answered 
in  his  letters  of  February  28  and  April  2, 1822,  by  alleging  first  discovery, 
occupancy,  aud  uninterrui>ted  possessiou.  It  api)ears  ui)ou  examina- 
tion that  these  claims  have  no  foundation  in  fact." 

In  the  same  letter,  after  combating  these  claims  and  referring  to  the 
lieculiar  relations  held  by  the  Un" ted  States  to  the  question  of  colonial 
establishments  on  the  North  American  continent,  Mr.  Adams  said: 
"  A  necessary  conseiiueiice  of  this  state  of  things  will  be  that  the 
American  continents  henceforth  will  no  longer  be  subjects  of  coloniza- 
tion. 0('cui)icd  bycivilizcd  iudependentnations,  they  will  be  accessible 
to  Europeans  and  to  each  other  on  tJiat  footing  alone,  aud  the  Pacific 
Ocean  in  ereri/  part  of  it  will  remain  open  to  the  navigation  of  all 
nations  iu  like  manner  with  the  Atlantic.  Incidental  to  the  condition 
of  National  independence  and  sovereignty,  the  rights  of  anterior  navi- 


83 


iiaiastic 
;  of  the 
}ing  the 
5  of  100 
idinit  i»o 
g  is  ])er- 
after  the 
Occiiii, 
'rritorial 
are  I'Oii- 
mle,  and 
ic,  Vol.  ], 

e  United 
I  the  pre- 
.  Adams, 
I  minister 
se  of  the 
exclusive 
d  as  be- 
remiiy  of 
all  other 
0  Italian 
itOA-  here, 
e  to  the 
nswered 
|iscovery, 
ixamina- 

|ig  to  the 
colonial 

Ins  said: 
that  the 
3oloniza- 
jcessible 
Pacific 
\n  of  all 
)ndition 
lor  navi- 


gation of  their  rivers  will  belong  to  each  of  the  American  nations  within 
its  own  territories.  The  application  of  colonial  principles  of  exijiusion, 
therefore,  can  not  be  admitted  by  the  United  States  as  lawful  on  any 
partof  the  northwest  coast  of  America,  or  as  belonging  to  any  Euro- 
pean nation.  Their  own  settlements  there,  when  organized  as  terri- 
torial governments,  will  be  adapted  to  the  freedom  of  their  own  insti- 
tutions, and,  as  constituent  parts  of  the  Union,  be  subject  to  the  prin- 
ciples and  provisions  of  their  constitution.  The  right  of  carrying  on 
trade  with  the  natives  throughout  the  northwest  coast  they  (the  United 
States)  can  not  renounce.  With  the  Russian  settlements  at  Kodiak,  or 
at  New  Archangel,  they  may  fairly  claim  the  advantage  of  a  free  trade, 
having  so  long  enjoyed  it  unmolested,  and  because  it  has  been  and 
would  continue  to  be  as  advantageous  at  least  to  those  settlements  as 
to  them.  But  they  will  not  contest  the  right  of  Kussia  to  prohibit  the 
traffic,  as  strictly  confined  to  the  Russian  settlement  itself  and  not 
extending  to  the  original  natives  of  the  coast."  U,  S.  Case,  Vol.  1, 
App.,  145,  IKij  148. 

Further  reference  to  the  diidomatic  correspondence  relating  to  the 
the  Ukase  of  1831  would  seem  to  be  unnecessary.  The  evidence  is 
overwhelming  that  the  positions  taken  by  the  United  States  and  Great 
Britain  wore  substantially  alike,  namely,  that  Russia  claimed  more  ter- 
ritory on  the  northwest  coast  of  America  than  it  had  title  to,  either  by 
discovery  or  occupancy,  and  that  its  interdict  of  the  approach  of  for- 
eign vessels  nearer  to  its  coasts  than  100  Italian  miles  was  contrary  to 
the  principles  of  international  law  and  in  violation  of  tlie  rights  of  the 
citizens  and  subjects  of  other  countries  engaged  in  lawful  business  on 
the  waters  covered  by  that  regulation. 

The  negotiations  between  Russia  and  the  United  States  resulted  in 
the  treaty  of  1821,  the  material  parts  of  which  are  as  follows: 

"Art,  1.  It  is  agreed  that  in  any  part  of  the  Great  Ocean,  com- 
monly called  the  Pacific  Ocean  or  South  Sea,  the  respective  citizens  or 
subjects  of  the  High  Contracting  Powers  shall  be  neittier  disturbed 
nor  restrained  either  in  navigation  or  in  fishing,  or  in  the  power  of 
resorting  to  the  coasts,  upon  points  which  may  not  already  h.ave  been 
occupied  for  the  purpose  of  trading  with  the  natives,  saving  always, 
the  restrictions  and  conditions  determined  by  the  following  articles. 

''  Art.  2.  With  a  view  of  preventing  the  rights  of  navigation  and  of 
fishing  exercised  upon  the  Great  Ocean  by  the  citizens  and  subjects  of 
tiio  High  Contracting  Powers  from  becoming  the  pretext  for  an  illicit 


84 


trade,  it  is  agreed  that  tho  citi/.ous  of  the  United  States  shall  not  resort 
to  any  point  where  there  is  a  Kussian  establishment,  withont  the  per- 
niission  of  the  Governor  or  Coinnnuuler;  and  tliat,  reciprocally,  the  sub- 
jects of  Kussia  shall  not  resort,  without  pcrniission  to  any  establish- 
ment of  the  United  States  upon  the  Northwest  Coast. 

"Art.  3.  It  is  moreover  agreed  that,  hereafter,  there  shall  not  be 
formed  by  the  citizens  of  the  United  States,  or  under  the  authority  of 
the  said  States,  any  establishment  upon  the  Northwest  Coast  of  Amer- 
ica, nor  in  any  of  the  islands  adjacent,  to  the  noith  of  G-to  40'  north 
latitude;  and  that,  in  the  same  manner,  there  shall  be  none  formed  by 
Kussian  subjects,  or  under  the  authority  of  liussia,  south  of  the  same 
parallel. 

"Art.  4.  It  is,  nevertheless,  understood  that  during  a  term  of  ten 
years,  counting  from  the  signature  of  the  present  convention,  the  ships 
of  both  powers  or  which  may  belong  to  their  citizens  or  subjects 
respectively,  may  reciprocally  frequent,  without  any  hindrance  what- 
ever, the  interior  seas,  gulfs,  harbors  and  creeks,  upon  the  coast  men 
tioned  in  the  preceding  Article,  for  the  purpose  of  fishing  and  trading 
with  the  natives  of  the  country."     U.  S.  Sfat.  vol.  8,  p.  302. 


The  negotiations  between  Eussia  and  Great  Britain  resulted  in  the 
treaty  of  1825,  as  follows: 

"I.  It  is  agreed  that  the  respective  subjects  of  the  high  contracting 
Parties  shall  not  be  troubled  or  molested,  in  any  part  of  the  Great  Ocean, 
commonly  called  the  Pacific  Ocean,  either  in  navigating  the  same,  in 
fishing  therein,  or  in  landing  at  such  parts  of  the  coast  as  shall  not 
have  been  already  occuiiied,  in  order  to  trade  with  the  natives,  under 
the  restrictions  and  conditions  specified  in  the  following  articles. 

"  II.  In  order  to  prevent  the  right  of  navigating  and  fishing,  exercised 
upon  the  ocean  by  the  subjects  of  the  high  contracting  Parties,  from 
becoming  the  pretext  of  an  illicit  commerce,  it  is  agreed  that  the  sub- 
jects of  His  Britannic  Majesty  shall  not  land  at  any  place  where  there 
may  be  a  Kussian  establishment,  without  the  i)ermission  of  the  Gov- 
ernor or  Commandant;  and  on  that  other  hand,  that  Russian  subjects 
shall  not  laud,  without  permission,  at  any  British  establishment  of  the 
Northwest  coast. 

"  III.  The  line  of  demarkation  between  the  possessions  of  the  high 
contracting  Parties,  upon  the  coast  of  the  continent  and  the  Islands  ( f 
America  to  the  Northwest,  shall  be  drawn  in  the  manner  following: 


85 


not  resort 
the  iHT- 
,  tlio  sub- 
establish - 

ill  not  be 
thorlty  of 
b  of  Anier- 
'  40'  north 
formed  by 
;  the  same 

srm  of  ten 
ijthe  ships 
r  subjects 
ince  what- 
joast  men 
nd  trading 


Ited  in  the 

ontracting 
at  Ocean, 

same,  in 
shall  not 
es,  under 
cles. 

exercised 
ties,  from 
,t  the  sub- 
lere  there 

the  Gov- 

subjects 

ent  of  the 

the  high 
llslands  ti 
)wiug: 


Commencing  from  the  southernmost  point  of  the  island  called  Prince 
of  Wales  Island,  which  point  lies  in  the  parallel  of  54  degrees  forty 
minutes,  north  latitude,  and  between  the  one  hundre<l  and  thirty-first, 
and  the  one  hundred  and  tlurty-thinl  degree  of  west  longitude  (Merid- 
ian of  Greenwich),  the  -^aid  line  shall  as<^end  to  the  north  along  the 
channel  called  rcntland  Channel,  as  far  as  the  point  of  the  continent 
where  it  strikes  the  fifty  sixth  degree  of  north  latitude;  from  this  last 
mentioned  point  the  line  of  denuirkation  shall  follow  the  summit  of  the 
mountains  situated  parallel  to  the  coast,  as  far  as  the  point  of  intersec- 
tion of  the  one  liumlred  and  forty-first  degree,  of  west  longitude  (of 
the  same  meridian)  and,  finally,  from  the  said  point  of  intersection,  the 
said  meridian  line  of  the  one  hundred  and  forty-first  degree,  in  its  pro- 
longation as  far  as  the  Frozen  Ocean,  shall  form  the  limit  between  the 
Kussian  and  British  possessions  on  the  continent  of  America  to  the 
Northwest. 

"  IV.  With  reference  to  the  line  of  demarkation  laid  down  in  the  pre- 
ceding  article  it  is  understood: 

First.  That  tlie  Island  called  Prince  of  Wales  Island  shall  belong 
wholly  to  liussii). 

Second.  That  wherever  the  summit  of  the  numntains  which  extend 
in  a  direction  parallel  to  the  coast,  from  the  fifty-sixth  degree  of  noi'tli 
latitude  to  the  point  of  intersection  of  the  one  hundred  and  forty-first 
degree  of  Avest  longitude,  shall  prove  to  bo  at  the  distance  of  more  than 
ten  marine  leagues  from  the  ocean,  the  limit  between  the  British  posses- 
sions and  the  line  of  coast  which  is  to  belong  to  Russia,  as  above  men- 
tioned, shall  be  formed  by  a  line  parallel  to  the  windings  of  the  coast,  and 
which  shall  never  exceed  the  distance  of  ten  marine  leagues  there- 
from. 

"  V.  It  is  moreover  agreed,  that  no  establishment  shall  be  formed  by 
either  of  the  two  parties  within  the  limits  assigned  by  the  two  pre- 
ceding articles  to  the  possessions  of  the  other;  consequently,  British 
subjects  shall  not  form  any  establisliment  either  upon  the  coast,  or 
upon  the  border  of  the  continent  comprised  within  the  limits  of  the 
Kussian  possessions,  as  designated  in  the  two  preceding  articles;  and, 
in  like  manner,  no  establishment  shall  be  formed  by  Itussiau  subjects 
beyond  the  said  limits. 

"  VI.  It  is  understood  that  the  subjects  of  II '.  liritannic  Majesty,  from 
whatever  quarter  they  may  arrive,  whether  from  the  ocean,  or  from 


86 


J 


the  interior  of  the  continent,  shall  forever  enjoy  the  right  of  navijjating 
freely,  and  without  any  hindnincc  whatever,  all  the  rivers  and  streams 
which,  in  their  course  towards  the  l'a«v'ic  Ocean,  nuiy  cross  the  lino 
of  dennirkation  upon  the  line  of  coast  described  in  article  three  of  the 
present  Convention. 

"  VII.  It  is  also  understood  that  for  the  space  of  ten  years  from  the 
signature  of  the  present  convention,  the  vessels  of  the  two  I'owers,  or 
those  belcuiging  to  their  respective  subjects,  shall  mutually  be  at  lib- 
erty to  fre(pient,  without  any  hiiulrance  whatever,  all  the  inland  seas, 
the  gulfs,  havens,  and  creeks  on  the  coast  mentioned  in  article  three 
for  the  purposes  of  fishing  and  trading  with  the  natives. 

"VIII.  The  port  of  Sitka,  or  Nova  Archangelsk,  shall  be  open  to  the 
commerce  an<l  vessels  of  British  subjects  for  the  space  of  ten  years 
from  the  date  of  the  exchange  of  the  ratifications  of  the  present  con- 
vention. In  the  event  of  an  extention  of  this  term  of  ten  years  being 
granted  to  any  other  power,  the  like  exteutiou  shall  be  granted  also  to 
Great  liritain. 

"  IX.  The  above-mentioned  liberty  of  commerce  shall  not  ajiply  to  the 
trade  in  si)iritu(ms  liquo.^  in  fire-arms,  or  other  anns,  gunpowder  or 
other  warlike  stores;  the  high  contracting  Parties  reciprocally  engag- 
ing not  to  permit  the  above  mentioned  articles  to  be  sold  or  delivered, 
in  any  manner  whatever,  to  the  natives  of  the  country. 

"X.  Every  IJritish  or  Kussiau  vessel  navigating  the  Pacific  Ocean, 
which  may  be  compelled  by  storms  or  by  accident,  to  take  shelter  in 
the  pt>rts  of  the  respective  Parties,  shall  be  at  liberty  to  refit  therein, 
to  provide  itself  with  all  necessary  stores,  and  to  put  to  sea  again, 
without  paying  any  other  port  and  lighthouse  dues,  which  shall  bo  the 
same  as  those  paid  by  national  vessels.  In  case,  however,  the  master 
of  such  vessel  should  be  under  the  necessity  of  disposing  of  a  part  of 
his  merchandise  in  order  to  defray  his  expenses,  he  shall  conform  him- 
self to  the  regulations  and  tariffs  of  the  place  where  he  may  have 
landed." 

From  these  treaties  it  will  be  seen  that  the  respective  subjects  or 
citizens  of  the  High  Contracting  Parties  were  not  to  be  molested  or 
disturbed  in  navigating,  or  in  fishing  in,  any  part  of  the  Pacific  Ocean, 
or  in  landing  on  the  coasts  of  either  country,  not  then  occupied, 
in  order  to  trade  with  the  natives,  except  under  certain  specified 
conditions  which  have  no  bearing  upon  the  present  controversy. 


87 


stioaiiKS 
tlio  lino 
e  of  tbo 

Tom  tho 
wera,  or 
»e  at  lib- 
,n(l  seas, 
ilc  three 

Ml  to  the 
ill  years 
<eiit  con- 
irs  being 
id  also  to 

)ly  to  the 
owder  or 
y  euff-Ag- 
elivercd, 

e  Ocean, 

lelter  in 

therein, 

a  again, 

ill  bo  the 

e  master 

I  part  of 

orm  him- 

ay  have 

)jeets  or 
ested  or 
0  Ocean, 
ccupied, 
si>ecified 


Wo  now  cotno  to  the  third  point  in  Arlicio  VI  of  tho  Trea'y — 

Was  the  hodif  of  water  now  known  as  the  licrintj  Sea  inc  uded  in  the 
phrase  ^^  Paeijie  Orean,''^  as  used  in  the  treaty  of  18:''>  hetieeen  Ureal 
liritain  and  liiissia;  and  what  riijhts^  if  any,  in  the  liering  Sea  were 
held  and  e.relusively  exercised  hy  h'nssia  after  said  treaty? 

An  atlirniative  answei'  to  thisqnestion  wonldsustain  tiie  position  taken 
by  Mr.  Blaine,  to  the  elVect  that  tlie.  treaty  of  182"),  as  between  Jliissia  and 
Oreat  Britain,  had  referenco  only  to  the  dispute  in  respect  to  the  bound- 
ary line  between  those  countries  on  tho  northwest  coast  of  America, 
south  of  the  (JOth  deyrco  of  north  latitude,  an«l  to  the  waters  of  the 
Pacific  Ocean  soutii  of  the  Alaskan  I'cninsula,  and  in  no  way  to  the 
waters  of  Bering  Sea,  or  to  the  Ukase  of  1S21  in  its  ai)plication  to 
tho  waters  of  that  Sea.  If  that  ])osition  was  well  taken,  it  might  bo 
fairly  contended  that  Great  Britain  by  signing  tho  treaty  of  1825, 
impliedly  recognized,  or  determined  not  to  further  question,  the  valid- 
ity of  the  IJivaso  of  1821  in  its  application  to  the  waters  of  Bering  Sea, 
for  the  distance  of  100  Italian  miles  from  its  shores  and  islands  in 
that  sea.  But  if  "racitic  Ocean"  in  the  treaty  of  1825  embraced 
Bering  Sea,  it  would  follow  that  that  treaty  had  the  etlect  to  annul  or 
withdraw  that  Ukase,  so  far  as  it  asserted  authority  in  liussia  to  molest 
or  disturb  the  subjects  of  Great  Britain  in  navigating,  or  fishing 
in,  any  of  the  open  waters  of  Bering  Sea  or  of  the  north  Pacilic 
Ocean. 

It  will  bo  observed  that  there  is  no  substantial  difference  between 
the  treaties  of  1824  and  1825,  in  respect  to  the  description  given  of  tho 
waters  in  whi(!h  the  citizens  or  subjects  of  the  High  Contracting  Parties 
were  to  enjoy  freedom  of  navigation  and  fishing.  The  words  in  tho 
treaty  of  1824,  "the  (xreat  Ocean,  (jonimonly  called  the  Pacific  Ocean 
or  South  Sea,"  evidently  describe  the  same  waters  as  the  words,  "the 
Great  Ocean,  commonly  called  the  Pacific  Ocean,"  in  the  treaty  of  1825. 

Before  the  latter  tn^aty  was  negotiateil  the  British  (rovernment  had  in 
its  possession  a  copy  of  the  treaty  between  liussia  and  the  United  Sta  tcs. 
Mr.  George  Canning,  in  his  letter  of  December  8th,  1824,  referring  to  a 
projet  proposed  by  Great  Britain,  and  which  Kussia.  rejected,  and  to  a 
counter  projet  proposed  by  Russia  which  Great  Britain  luul  rejected, 
said  that  the  stipulation  for  free  navigation  in  the  Pacific  stood  in  the 
front  of  the  Convention  concluded  between  Kussia  and  the  United  States 
of  America  J  that  uo  reason  existed  why  upon  similar  claims  Great  Britain 


88 

Klioulil  not  obtain  exactly  the  like  satisfaction;  that  for  reasons  of  the 
same  nature  (ii'cat  Uritaiu could  not  consoiif  that  the  liberty  of  navi- 
gation through  IJeriny  Straits  be  stated  in  the  treaty  as  a  boon 
from  Itussia;  that  the  tendency  of  such  a  s*;atenient  would  be  to  give 
countenance  to  those  claims  of  exclusive  jurisdiction  against  which 
Great  Britain  on  its  own  behalf,  and  on  that  of  the  whole  civilized  world, 
protested.  No  specification  of  this  sort,  he  said,  was  found  in  the  Con- 
vention with  the  United  States  of  Amciica,  and  yet  it  could  not  be 
doubted  that  the  Americans  considered  themselves  as  secured  in  the 
right  of  navigating  Bering  Straits  and  the  sea  beyond  them.  ''  It  can 
not  be  ex[»ected,"  he  said,  "that  England  should  receive  as  a  boon 
that  which  the  United  States  hold  as  a  right  so  '"'questionable  as 
not  to  be  worth  recording.  Perhaps  the  sim])lest  course  ai'ter  all  will 
be  to  substitute,  for  all  that  i)art  of  the  'projcV  and  'counter  2)rojet^ 
which  relates  to  niaritiiue  rights  and  to  navigation,  the  first  two  articles 
of  the  convention  already  (londuded  by  the  court  of  St.  Petersburg 
with  the  United  States  of  America  in  the  order  in  whi(;h  they  stand 
in  that  coiivciition.  Itussia  can  not  mean  to  give  to  the  United  States 
of  America  wiiat  she  withholds  from  us;  nor  to  withhold  from  us  any- 
thing that  she  has  consented  to  give  to  tlie  United  States.  Tlie  uni- 
formity of  stipulations  in  pari  materia  gives  clearness  and  force  to 
both  arrangements,  and  will  establish  that  footing  of  equality  between 
the  several  contra(;ting  parties  which  it  is  most  desirable  should  exist 
between  three  powers  whose  interests  come  so  nearly  in  contact  with 
each  other  in  a  i)ait  of  tlie  globe  in  which  no  other  power  is  concerned." 
liritinh  CJase,  Vol  :J,  App.^TS. 

In  view  of  these  and  similar  declarations  by  llritish  rei)resentatives, 
made  before  the  negotiation  of  the  treaty  of  1825,  it  is  earnestly  con- 
I  ended  that  that  t  reaty  must  receive  the  same  interpre  ration  that  would 
be  given  to  the  treaty  of  1824  as  construed  by  llussia  and  the  United 
States.  And  it  is  said  that  Kussia  and  the  United  States,  before  the 
ratilieation  ol'  tlie  tit^aty  of  1S2I,  substantially  agreed  that  that  treaty 
(lid  not  rel'er  to  the  waters  of  Bering  Sea,  and,  consequently,  it  is 
argued,  "  Pacific  Ocean,"  as  used  iu  both  treaties,  must  be  held  not  to 
include  that  Sea. 

The  facts  upon  which  these  oontentions,  in  respect  to  the  treaty  of 
1824,  are  based,  may  be  thus  summari/ed: 

The  treaty  of  1824  was  signed  at  St.  Petersburg  April  5  (17),  1824. 


89 


[ives, 
con- 
ic )nl(l 
liited 
the 
Itiity 
lit  is 
l)t  to 

y  of 
l824. 


Shortly  therciiftor  the  Rnssiiui-Ainericaii  (^oinpaiiy  rep,  eseiitcd  to  the 
Itu.ssiiin  Goveriinuiiit  that  conseiiuoiicea  iiijmious  to  its  rij^hts  might 
result  from  its  ratiflcatioii.  The  subject  was  referred  by  tlie  Emperor 
to  a  committee,  at  the  head  of  which  was  Count  Nesselrode.  That 
committee,  July  21, 1.SJ4,  made  a  report,  which  received  the  ai)pr(tval  of 
the  Emperor.  After  enumerating  the  advantages  that  would  accrue  to 
liussia  from  carrying  out  the  treaty,  the  report  pro(;eeds:  "  7,  That  as 
the  sovereignty  of  Russia  over  the  coasts  of  Siberia  and  the  Aleutian 
Islands  has  long  been  admitted  by  all  the  poivrrs,  it  follows  that  the 
said  coasts  and  islands  can  not  be  alluded  to  in  the  articles  of  the  said 
treaty,  which  refers  oidy  to  the  disputed  territory  on  the  northwest 
coast  of  America  and  to  the  adjacent  islands;  that,  even  supposing 
the  contiary,  Russia  has  established  permanent  settlements,  not  oidy 
on  the  coast  of  Siberia  but  also  on  the  Aleutian  group  of  islands; 
heme,  American  subjects  could  iu)t,  by  virtue  of  the  second  article  of 
the  treaty  of  April  5-17  land  at  the  maritinie  places  there,  nor  carry 
on  scaling  and  lishing  without  the  permission  of  our  commandants  or 
governors.  Moreover,  the  coasts  of  Siberia  and  the  Aleutian  Islamls 
are  not  washed  by  the  Southern  Sea,  of  which  alone  nujution  is  made 
in  the  tirst  article  of  the  treaty,  but  by  the  Northein  Ocean  and  tlie 
seas  of  Kamchatka  and  Ohkotsk,  which  form  no  part  of  the  Sotusliern 
Sea  on  any  known  map  or  in  any  geography.  8.  Lastly,  wc  must  not 
lose  sight  of  the  fact  that,  by  the  treaty  of  April  5-17  ail  the  disputes 
to  which  the  regulations  <,f  >3e|tember  4  (10),  1821,  gave  rt**,  iur*-  twini- 
nated,  which  regula*^ioi  s  were  issued  at  tlic  forni<«l  :iiMi  i:»*it*^'i«t.*^l 
re([uest  of  the  Russian  Anierican  Company:  hiil  tlM»sc  «jlii.-»,j«tU-«  Mtiii4 
already  assumed  important  proportions,  and  would  cert  .iiM4>  Itf  n^ut-vt^ 
if  Russia  did  not  ratify  the  treaty,  in  which  case  it  w  hiUI  1m^  iiiiij»<>s-it»4*> 
to  foresee  the  end  of  them  or  their  consccpicncc*.  fl*^?**-  weighty 
reasons  impel  the  majority  of  the  members  of  <he  couiiiiitree  to  .■^taite 
as  their  opinion : 

'<  That  the  treaty  of  xVpril  0-17  must  be  ratified,  an44Mlr^''wikll^fM^ 
veiition  of  any  incorrect  interpretalion  of  that  a(^t,  Con.  Jijfc»»*ii  TmyW 
may  be  instructed  at  the  proper  time  to  make  the  deciaratiow  men- 
tioned in  the  draft  of  the  comnmnication  read  by  Count  XesH+'irofi*'. 
The  Minister  of  Finance  and  Acting  State  Counselor  DruMiinin.  wliifer 
admitting  the  necessity  of  ratitying  the  treaty  of  April  5-17,  ex[ireiMi 
and  place  on  record  the  special  opinion  hereto  annexed  in  the  proetocol, 
to  the  etlect  that  Rarou  Tuyll  should  be  instructed  at  the  exchange  of 


90 


the  ratiflcation  of  lliat  trcfty  lo  stipulate  tliat  (lie  lij^lit  office  liiintiiio; 
and  (isliiiig-  granted  by  the  twellth  article  of  the  said  treaty  sliall  extend 
only  from  54°  40'  to  the  lutitudo  of  Cross  Sound."  U.  S.  Counter 
Case,  156, 157. 

Tins  report  was  coninmnicatod  by  the  Tlnssian  ^Minister  of  Fiiian<'e 
to  the  llussian  Anu'rican  Company,  in  a  eonininnication  \\hi('h  closed 
with  these  words:  ''  I'roni  these  docnnuMitvS  the  board  will  see  that,  for 
the  avoidance  of  all  inisunderstandinf;s  iu  the  execution  of  the  above 
mentioned  convention,  and  in  conformity  with  the  desire  of  tiie  com- 
pany, the  ne(;essary  instructions  have  alicady  been  given  to  ISaron 
Tuyll,  our  minister  at  Washington,  to  the  ellect  that  the  northw(!stein 
<*oast  of  America,  along  the  e ..tent  of  which,  by  the  provisions  of  the 
convenlion,  free  trading  and  fishing  are  permitted  subjects  of  theXorth 
American  States,  extends  from  ~^\P  40'  northwards  to  Yakntat  (IjcriMg) 
Bay."     v.  8.  (Jonnter  Cose,  ir,r,. 

The  instructions  received  by  Baron  Tuyll  fn»in  his  Governn cut  were 
communicated  by  him  informally  to  Mr.  Adams,  the  Ameiic.n  Secre- 
tary of  State.  This  appears  from  the  Diary  of  Mr.  Adams,  under  date 
of  I)eeend)er  5,  tS24.  at  which  time  tiie  treaty  of  USL't  had  not  been 
approved  by  the  United  States  Senate.  The  account  which  Mr.  Adiiuis 
gives  in  his  Diary  of  Baron  Tuyll's  interview  with  him,  is  as  fol- 
lows : 

"67/(,  Mondinj. — T?aron  Tnj'U,  the  Russian  Minister,  wrote  mo  a  note 
recpiesling  an  immediate  interview,  in  consequence  of  instructM)na 
received  yesterday  from  his  court.  He  came,  aii'!  alter  intimating  that 
he  was  ui'der  some  embarrassment  in  executing  his  instructions,  said 
that  the  Knssian  Anuuic^an  CJompaiiy,  upon  learning  the  i)urport  of  the 
northwest  coast  (MUivention,  concluded  last  dune  by  Mr.  Middleton,  were 
extr<'mely  dissatisfied  ('"ajete  dea  hants  cris"),  and  l»y  means  of  their 
inliuenc*'.  had  {irevailed  up(Ui  his  (Tovornmeiit  to  send  him  these  in- 
stnw'tions  upon  two  points.  One  waLS,  that  he  should  deliver,  upcui 
thf  exchange  of  tln>  ratifications  of  the  convention,  an  explanatoiy 
iMrte,  purporting  that  the  Russian  Government  did  not  understand  that 
tbt  convention  W(mld  give  liberty  to  the  citizens  of  the  United  States 
to  trade  on  thec')asts  of  Siberia  and  the  Aleutian  Islands.  'V\w  (»lher 
waa.  to  propose  a  modilication  of  the  convention  by  which  our  vessels 
shonld  be  prohibited  ('nun  trading  on  the  northwest  coast  nortii  of 
latitude  oT.  With  regard  to  the  former  of  these  points  he  left  with 
nie  a  minute  iu  \vritiug. 


extend 

Counter 

[''inntwe 

i    cldSCtl 

liiit,  for 
d  above 
lie  eom- 
)  Uaion 

s  of  Mio 
leXoith 

(IJciiiig) 

(Mit  were 
n  Sccre- 
(lor  (late 

lot   IX'Cll 

I".  A(l;;ins 
>  as   fol- 

le  a  note 
nctions 
iiiu  tliat 
)iis,  said 
t  of  the 


on,  were 


91 

"  1  tolci  liini  that  we  sliould  be  disposed  to  do  ever\  tliiiijj  to  aeeomnio- 
date  the  views  of  liis  (iovernnient  tltat  was  in  our  power,  but  That  a 
modification  of  the  convention  conhl  be  niaib'  no  otiierwise  than  by  a 
new  convention,  and  (lutt  the  construction  of  the  convention  <tn  con- 
cluded belonged  to  other  dcpartmentH  of  the  (Hovernmcnt^  for  irlii  h 
the  Executive  h((d  no  authority  to  stipulate;  fhot  il  <>),  the  exchomje 
of  the  ratified tiona  he  ahould  delixw.r  to  me  a  note  of  the  purpori  of  that 
nhichhenow  informally  gave  me,  I  .should  f/ive  him  an  answer  of  that 
import.,  namely,  that  the  construction  of  treaties  dcpcndiuf/  here  upon 
the  judicicry  tribunals,  the  Executive  Government,  even  if  disposed  to 
acquiesce  in  that  of  the  limvian  Government  as  announced,  by  him, 
could  not  be  binding  upon  the  courts  nor  upon  this  nation.  1  added 
that  the  eonveiition  wouUl  be  subniittcMl  iiniiKMliately  to  tiie  Senate; 
tliat  if  anything  affecting  its  coustruc.tion,  or,  still  more,  modifying;-  its 
meaniiif;',  were;  to  be  presented  on  the  part  of  the  Russian  (jioverninent 
ij!  fore  or  at  the  exclianj^'e  of  ratilications,  it  must  be  laid  before  the 
tjenate,  and  could  have  no  other  possible  effect  than  of  starting  doubts 
and  pei'haps  hesitation  in  that  body,  and  of  favoring  the  views  of  those, 
if  such  tlioio  were,  who  might  wisii  to  (b^feat  tli(!  ratification  itself  of 
the  convention.  This  was  an  objei't  of  great  solicitude  to  both  (Joverii- 
meuts,  not  only  for  the  adjustment  of  a  difficult  cpiestion  whicn  had 
arisen  between  them,  but  for  the  promotion  of  that  li;;imony  whic'i  was 
s(»  much  in  tliepoli(\v  of  tiie  twit  count  lies,  whicdi  miglit  empiiatically 
be  tmined  natuial  l\iends  to  eaclnilher.  if,  tlierefore,  he  would  per- 
mit me  lo  suggest  to  him  what  I  Ihoughl  w<Mdd  be  his  best  course,  it 
would  \n\{o  wait  for  the  exchange  of  the  ratilications  andmalc(dt  purely 
and  simply;  tliat  afterwards,  if  the  iiistrui'ti(His  of  his  (loverninent  were 
imperative,  ho  might  present  llic  not*',  (o  which  T  now  informed  him 
what  would  be  in  substance  my  ansirrr.  It  necessarily  could  not  be 
otherwise,  lint  if  his  instiiirlious  hil  it  discretionary  with  liiiii,  ho 
would  do  still  better  to  intbriii  his  gov  criiment  of  the  state  of  things 
here,  of  the  purport  of  our  conference,  and  of  what  my  answer  must  be 
if  he  slncild  present  tlie  note.  1  believed  his  court  would  then  d«M'Mi 
it  best  that  he  should  not  present  tin-  note  at  all.  Their  ai>preliensioiis 
had  been  excited  by  an  interest  nol  \ery  f'riciKily  tt>  the  good  under- 
standing between  the  IFnited  States  and  iiussia.  Our  merchants 
woiiul  not  go  to  trouble  the  Ilussians  on  the  coast  of  Siberia  or  north 
of  the  lifty-seveutli  deyree  of  latitude,  aud  it  was  wisest  not  to  put 


lii 


92 


Huc.h  liiiicicH  into  Micir  luiiulH.  At,  h-ast,  (iio  Imporial  (JovJMMiiiioiit 
iiii^lit  wivit;  to  H<>(5  tlioopcration  of  t.lic.  (;oiiv(Mitioii  ix'.lorc,  t,;ikiii^  any 
I'urtluM"  HU'|),  ai«l  1  was  conlKU'iit.  tlicy  would  licur  no  conipliiinl;  leHult- 
iii^jlVoin  it.  Il'tiicy  slioiild,  tlicn  would  l)o  tlu;  tiuM',  for  ji'ljuslin};-  tiiccon- 
Htruction  or  iie^otiiitin^  a  nioditication  of  the  convention;  aud  wlioevcr 
nil^'lit  he  at(  tlie  iioad  of  the  adndnistration  of  tlu;  llnitcMl  States,  he 
niij;ht  Ix'.  assure<l  that  every  disposition  would  i»o  elierisiied  to  remove 
all  (;auses  of  <lissiitisfae(ion  iind  to  uceoininodatc  tlie  wislies  and  the 
just  poliey  of  tlu',  lOnipi^ror. 

"The  |{aroii  said  tluit  these  ideas  had  occurred  to  liiiuself ;  that  h<'  had 
made  this  application  in  pursuance  of  his  instructions,  hut  lie.  won 
(tioare  of  the.  dislri  Initio  it  of  jtowers  in  our  (Jonstitulion  and  of  the, 
ineomi>ctc)ic}i  of  tin:  Fjxe.cutive  to  adjust  questioun.  lie  would,  ther(!- 
fore,  wait  for  the  <v\<-.han^(;  of  the  raliilcations  without  |>resentinj^ 
liiH  note,  and  reserve  for  future  (;onsidera.t,iou  wluither  to  i)r(!senl  it 
shortly  afterwards  or  to  inform  his  (;ourt  of  what  he  had  done  and  ask 
tlieir  furtluM-  instructions  as  to  what  he  shall  de(initiv<(ly  do  on  the  sub- 
ject, lie  therefor*'.  re(piest(^d  me  to  considcu-  what  had  now  i)a,ssed 
between  iisas  if  it  iiad  not  taken  piarc  ("non  a  venu"),  to  which  I  rciadily 
assented,  assuring;'  him,  as  I  had  done  heretofore,  that  the  l*resi(l<Mit 
had  the  highest  p(>rsonal  ctHilideiiciMu  him  and  in  his  (ixertions  to  foster 
the  harmony  between  I  lie  two  countri(^s.  I  reported  immediately  to  tlio 
President  the  sul)stanc(^  of  this  conversation,  and  Ih;  concur!«',d  in  the 
pi'opriety  of  the  baron's  tinal  dclermination."  Memoirs  of  John  (}uin(y 
A<l<t)UN,  Vol.  (1,  p.i:ir>. 

In  (Mjufornnly  (it  may  be  assumed)  with  Mr.  Adams'  advice  or  inti- 
mations iiaron  'ruyii  forebore  to  tile  any  ofticial  note  upon  the  subject 
prior  to  tlic  ratilicatiou  of  tlii^  tiuiaty  by  tiie  United  States.  The 
treaty  havinj^'  been  I'atilied  January  lo,  IS'Jo,  iind  .lanuary  25,  IStia, 
Jiaron  Tuyll,  under  instru(;tions  from  his  (iovernnuMit,  liled  in  the 
Depaitment  of  State,  the  foll«»win<j:  I'^xplanatory  N'«»te: 

"  lOxpIanatory  note  to  be  presented  to  the  (lovernnKMit  of  llie  United 
States  at  the  time  of  the  exchaii^^^  of  rati(ica,ti(His,  witii  a  view  to 
renu)vin;;'  with  more  certainly  all  occasion  for  future  discussions,  by 
nu'ans  of  which  it  will  be  set'ii  that  the  Ah^utian  Islands,  tln^  coast  of 
Siberia,  and  th(^  K'ussian  possessions  in  ^jfeneral  on  the  n()rthw*'.st  <toast 
of  America  to  r»!) ','{()' of  north  latitude  are  j)ositively  (^xceptf^d  from 
the  liberty  of  hunting;,  lishinff,  and  commerce  stiiudated  in  favor  of 
citizens  of  the  United  Statet  Ibi  ten  years. 


98 


iiiti- 

1  »)<'('.  t 

I  Tim 

ISLT., 

the 

litcd 
|v  to 

It,  (.(• 

OilHt 

|i-<)ni 
of 


"ThiH  .s(i('ri»s  to  bft  only  a  iiiitnral  consofinctiro  ot  mo  HtipuliitioiiH 
af;r«;(;«l  upon,  for  Mui  coiists  of  Hil)nriii  aie  waslit^d  by  tlic  Hca  of 
Okhotsk,  tlio  S<'a  of  KiiiiKScliatka,  ami  the  icy  Sea,  and  not  by  llio 
Houth  tSoa  in(!ntion«!d  iii  tlic-  (irHt  article,  of  the,  convontion  of  Aprils 
(17),  1H24.  Tlio  AhMitian  Islands  are  also  washed  hy  the  Sea  of  Kani- 
Hchalka,  or  NortluTO  Ocean. 

"  It  is  not  tln>,  int<'ntion  of  Itnssia  lo  iinjHMlc  the  free  navij^ation  of 
tli(^  I'acilic  Ocean.  Hhc  would  i)c  satisfied  with  causinj;-  to  lie  rccoj;-- 
nizcil,  as  well  as  Jiiubustood  an<l  place<l  beyond  all  manner  of  doubt, 
th«'.  j)rinciplc  that  beyond  59'^  .■>()'  no  forcitfu  vessel  can  apjtroach  her 
coasts  and  \w,v  islands,  nor  lish  nor  hunt  within  the  distance  of  two 
marine  leaj;ues.  This  will  n(tt,  ]>revent  the  reception  <tf  UtWAfiu  vessels 
wliicli  have  been  daniaj;<Ml  or  l)eaten  by  storm."  IJ.  tS.  (Jasc,  Vol.  l,A]ii>., 
'^7:'j;  Mtmoirs  of  John  Qidiiri/  AtlaviH,  Vol.  6',  p.  i.'i't. 

In  respect  to  these  niatt(^rs  Mr.  Hlaiiui  obseivcd :  "Of  course  his 
(IJanni  Tuyll's)  act  at  that  time  did  not,  atl'cct  the  text,  of  the  treaty, 
but  it,  plaited  in  the  hands  of  tii<t  <jiov<',rnmeid,  of  the  United  Stat(;s  an 
unolliciai  note  which  Hij,'nilicantly  told  what  i;ussia,\s  conslructioM  of 
the  treaty  would  be  if,  unhappily,  any  did'cicncc  as  to  its  meaninj,' 
HJiould  arise,  between  the  two  j,'ov<;rnm<'-ntK.  liut  Mr.  Adams'  Iriendly 
intimation  removed  all  danj^er  of  dispute,  for  it  conveyed  to  liussia  tin; 
assurance  that  the,  tn^Hty  as  mtfj;otiated  contained,  in  elfect,  the  pro- 
visions which  the  liussian  note  was  d«!sif;ne(l  to  supply,  I''rom  that 
time  until  Alaska,  with  all  its  rij;hts  of  land  ami  water,  was  trans- 
ferr(td  to  the  United  Ktates — a  perio<l  of  forty-three  years — no  act  or  word 
on  the  i)art  of  citlK-r  {government  ever  impeached  the  full  validity  of  the 
treat,yas  '.  was  uuder.slood  both  by  Mr.  Adams  and  Haion  Ttiyll  at  the 
time  it  v.as  formally  pro(!laimed.  While,  these  important  mattcis  wcu-e, 
transpirinj^  in  Washin^lon  n<'j;otiations  bet  ween  Russia  and  Mnj^land 
(endinj^  in  the  treaty  of  l!S2."))  were  in  prctj^nc^ss  iti  St.  I*<'ter.sbur}f.  The 
instructions  to  ISaron  Tiiyll  conceriiin;;-  the  Russian  American  treaty 
were  fully  rellect<Ml  in  tin;  care  with  which  the.  Ani;lo  Iv'iissian  ti'«'aty 
was  constniclod — a  fac/t  t<»  which  I  have  alieady  adverted  in  full. 
There  was,  indeed,  a  i)ossil)ility  that  the  true  meaninj^ of  the  treaty  with 
the  United  State's  mijjht  be  misunderstood,  and  it  was,  thert'fore,  the 
evident  purpose  of  the  Russian  (loviuriment  to  make  the  treaty  with 
I']n,<;land  so  phiin  and  so  clear  as  t,o  h^ave  no  room  for  doubt  and  to 
battle  all  attempts  at  misconstruction.  The  (lovcrnment,  of  the  United 
iStatos  liuds  the  lull  advantage  to  it  in  the  caution  taken  by  Russia  in 


94 


1825,  and  can,  tlmicfore,  quote  tlie  Aiif;l()  Russian  treaty  with  the  utmost 
conlidcuf.e  that  its  meaning  can  not  be  changed  fro  t  cleuiy unmis- 

takable text  wiiich  throughout  all  the  articles  susi.  the  American 
contention.  Tiie  Explanatory  Note  tiled  witli  this  Government  by  B  ixon 
Tuyll  is  so  plain  in  its  text  that  after  the  lapse  of  sixty-six  years  the  e.;act 
meaning  can  neither  be  niisappreheruled  nor  misi-epresented.  It  draws 
the  distinction  between  the  Pacific  Ocean  and  the  waters  now  known 
as  the  Bering  Sea  so  particularly'^  and  so  perspicuously  that  no  answer 
can  be  made  to  it.  It  will  bear  the  closest  analysis  in  every  particular. 
It  is  not  the  intention  of  liussia  to  impede  the  free  navigation  of  the 
Pacific  Ocean.  This  fraiik  and  explicit  statement  shows  with  what 
entire  good  faith  Itussia  had  withdrawn  in  both  treaties  the  offensive 
Ukase  of  Alexander  so  far  as  the  Pacific  Ocean  was  made  subject  to  it. 
Another  avowal  is  eiiually  explicit,  viz,  that  the,  coast  of  Siberia,  the 
nortliwest  coast  of  America  to  59^  30'  north  latilude — that  is,  down  to 
59*^  30',  the  ex[»lanatory  note  reckoned  from  north  to  south — and  tlie 
Aleutian  Islands  are  positively  excepted  from  the  liberty  of  hunting, 
fishing,  and  commerce,  stipulated  in  favor  of  citizens  of  the  United 
States  for  ten  years."     U.  S.  Case,  Vol.  I,  App.,  377,  37S. 

It  seems  to  me  tliat  the  interview  between  Baron  Tuyll  and  Mr. 
Adams  is  of  far  less  consequence  tlian  tluiit  attached  to  it  by  Mr.  Blaine. 
Nor,  in  my  Judgment,  are  the  inferences  wliich  he  draws  from  it  Justi- 
fied by  the  facts  as  disclosed  by  the  Kussiau  documents  and  by  the 
Diary  of  Mr.  Adams. 

Ilecurring  to  the  treaty  of  1824,  it  will  be  rem<?mbered  that  Article  1 
secured  to  the  respective  citizens  and  subjects  of  the  contracting 
powers  freedom  of  navigation  and  hshing  in  every  part  of  the  Great 
Ocean  commonly  called  the  Pacific  Ocean,  or  tSovith  Sea,  and  also  the 
right  to  resort  to  coasts  upon  points  not  then  occupied  for  the  purpose 
of  trading  witli  the  natives,  subject  to  or  sav'ng  the  restrictions  and 
conditions  prescribed  in  the  succeeding  aricles.  Anions;  those  con- 
dith)ns  were:  1.  Jiy  Article  II,  citizens  of  the  United  States  should 
not  resort  to  any  i)o'.nt  wliere  there  was  a  llussiau  establishment 
without  tlie  permission  of  the  Government  or  commander,  and  the 
subjects  of  Kussia  should  not  resort,  without  permission,  to  any  estab- 
lii<.hment  of  the  United  States  upon  the  northwest  coast.  2.  P>y 
Article  III,  neitlier  thi>  United  State-  nor  its  citizens  should  form 
any  establiNlimcnt  upon  the  northwest  coast  of  .i^nieri«i.  -M^r  in  the 
islands  adjacent,  to  the  uortli  oi  titty-four  degrtjes  iuad  lbit\  lu  mutes  of 


95 


north  latitude,  and  that,  in  the  same  manner,  there  shall  be  none 
formed  by  Kussian  subjocts  or  under  the  authority  of  Knssia  south  of 
the  same  parallel.  IJut  by  Article  IV  it  was  jirovided  that  for  a  period 
often  years  the  8hii)s  of  cither  country  might  frequent  the  interior 
seas,  gulfs,  harbors,  and  creeks,  u])on  the  coast  mentioned  in  the  pre- 
ceding article,  for  the  purpose  of  lishing  and  trading  with  the  natives 
of  the  cf)untry. 

Now  it  is  ai)pareut  from  the  proceedings  of  the  Nessolrode  confer- 
ence of  July  21,  lS2t,  the  Diary  of  Mr.  Adams,  and  the  I'xplanatory 
Note  of  iJaron  Tuyll,  that  the  llussian-Amcrican  Company  wore  not  at 
all  disturbed  by  the  broad  recognition  iu  ArHcle  I  of  fieedom  of  navi- 
gation and  lishing  through  >ut  the  whole  of  the  Great  Ocean.  Tiieir 
uneasiness  had  reference  to  the  i)ossibility  that  the  treaty  could  be 
construed  as  giving  the  right  for  ten  years  to  trade  on  the  cuast  of 
Siberia  and  the  Aleutian  Islandn.  The  substance  of  the  answer  madii 
by  the  Russian  Government  to  the  Kussian-American  Company  was 
that  the  article  of  the  treaty  reserving  the  right  to  resort  for  ten  years 
to  certain  "interior  seas,  gulfs,  harbors,  and  creeks"  referred  to  the 
Avaters  that  washed  the  coast  mentioned  in  Article  111,  which  Avas 
the  coast  most  in  dispute  between  the  two  countries,  and,  therefore, 
did  not  authorize  citizens  of  the  United  States  to  trade  on  the  coasts 
of  Siberia  and  the  Aleutian  Islands  which  were  never  in  dispute,  and 
over  which  Russia  for  a  long  time,  and  without  question,  had  exercised 
sovereign  authority;  in  other  words,  that  the  privilege  of  trading  for 
ten  years  did  not  extend  to  the  coast  of  Siberia,  or  to  the  Aleutian 
Ishinds,  or  to  the  Russian  possessicms  in  general  on  the  entire  north- 
west coast  of  America,  but  ouly  to  the  coasts,  embracing  the  territory 
ill  dispute  between  the  two  countries,  south  of  59°  30'  north  latitude. 
Nowhere  in  the  documents  referred  to  is  there  a  suggestion  that  Rus- 
sia understood  the  treaty  of  1824  as  reserving  to  itself  any  peculiar  or 
l)aramount  authority  over  the  waters  of  the  raclllc  Ocean  outside  of  the 
ordinary  limit  of  territorial  jurisdiction.  The  only  part  of  any  docu- 
ment implying  that,  in  the  judgment  of  'he  Russian  autiiorities,  the 
treaty  had  uo  refere.ice  to  Bering  Sea,  is  ;he  statement  incidentally 
in  the  proceedings  of  the  Nesselrode  Confereni  o  and  in  the  Exidanatory 
Note  of  liarou  Tuyll,  to  the  etiect  that  the  co  ists  of  Siberia  and  the 
Aleutian  Islands  were  not  washed  ''by  the  Souihern  Sea"  mentioned 
iu  Article  II.  But  there  is  no  evidence  in  Mr.  Adams's  Diary  that  he 
aisseiited  to  this  view.    He  waived  any  discussion  of  the  question. 


96 


It  was  impossible  for  him  to  have  assented  to  the  views  of  Baroii  Tiiyll 
except  upon  tlie  theory  that  he  recofjiiizod  the  tiealy  of  1824  as  liavinjr 
no  reference  at  all  to  the  waters  of  the  Bering  Sea  as  part  of  the  Great 
Ocean  commonly  called  the  Pacific  Ocean  or  South  Sea,  a  conclusion  at 
variance  with  all  that  he  contended  for  throughout  the  negotiations 
arising  from  the  Ukase  of  1821.  In  my  opinion,  Mr.  r>htine  was  mistaken 
in  saying  that  Mr.  Adams  expressed  his  concurrence  in  Baron  Tuyll's 
interpretation  of  the  treaty  of  1821.  It  is,  I  think,  quite  clear  that  Mr. 
Adams  prudently  withheld  any  expressi(m  of  his  opinion,  disclaiming 
authority  in  himself  or  in  the  President  of  the  United  States  to  (ihange 
or  give  any  binding  interpretation  of  the  treaty.  He  frankly  stated  to 
Baron  Tuyll  that  the  treaty  as  made  nnist,  when  ratified,  be  carried  out 
according  to  its  proper  interpretation  and  meaning.  Tie  warned  him 
that  if,  on  the  exchange  of  the  ratifications,  he  should  deliver  a  note  of 
the  i)urport  of  that  informally  delivered,  he,  Mv.  Adams,  slumld  tell 
him  "that  the  construction  of  treaties  depending  here  upon  tlie  judi- 
ciary tribunals,  the  Executive  Government,  even  if  disposed  to  ac(iui- 
esce  in  that  of  the  Kussian  Government  as  announced  by  him,  conld 
not  be  binding  upon  the  courts  nor  ui)on  this  nation."  Baron  Tuyll 
distinctly  said  that  he  understood  the  relations  subsisting  in  Amer- 
ica between  the  executive  and  judicial  departments  of  Governnient. 
So  that  the  utmost  that  can  be  said  is,  that  the  United  States  had  notice, 
before  the  ratilication  of  the  treaty  of  1824:,  of"  the  interpretation  which 
Russia,  possibly,  at  some  future  time,  would  ])lace  u])on  the  treaty,  so 
far  as  it  embraced  the  subject  to  which  Baron  Tuyll  referred  in  his 
Explanatory  Note. 

The  material  inqniry,  however,  Is  whether  Great  Britain  had  any 
notice  of  what  took  place  in  the  interview  between  Baron  Tuyll  and 
Mr.  Adams.  This  (piestion  must  be  answered  in  the  negative.  It  is 
not  claimed  that  the  Explanatory  Note  of  Baron  Tuyll  was  ever  pub- 
lished or  brought  to  light  from  the  liles  of  the  State  Department  of 
the  United  States  until  it  was  produced  in  this  case.  Nor  is  it  pre- 
tended that  a  copy  of  it  was  ever  sent  to  Great  Britain.  The  only 
document  relied  ui)on  to  show  knowledge  upon  the  part  of  Great 
Britain  of  the  interpretation  placed  by  the  United  States  upon  the 
treaty  of  1824  is  the  letter  of  Mr.  Addiugton,  the  British  representa- 
tive at  Washington,  written  August  2, 1824,  to  Mr.  George  Canning.  Mr. 
Addington  said:  "A  convention  concluded  between  this  Government 
and  that  of  Kussia  for  the  settlement  of  the  rcHpective  claims  of  the 


97 


cl  any 
111  ami 
It  is 
|r  i)ub- 

|(Mlt  of 

it  pre- 
only 

(Great 
u  the 

l.st'iita- 
INTr. 

Imicut 
)t'  the 


two  nations  to  the  intercourse  with  the  n()rth\vest(>rn  coast  of  Aniorira 
reached  the  Department  of  State  a  few  days  since.  Tlie  main  i>(»iiits 
determined  by  this  instrunjcnt  are,  as  far  as  I  can  coHcct  from  tlie 
American  Secretary  of  State,  (1)  the  enjoyment  of  a  free  and  unre- 
stricted intercourse  by  each  nation  with  all  tlie  settlements  of  tlic  other 
on  the  northwest  coast  of  America,  and  (2)  a  stipulation  that  no 
new  settlements  sliall  be  formed  by  Kussia  simth,  or  by  the  United 
States  north,  of  latitude  51°  40'.  The  question  of  the  marc  chuisum, 
the  sovereignty  over  which  was  asseitcd  by  the  Emperoi-  of  Kussia 
ju  his  celebrated  Ukase  of  1821,  but  virtually,  if  not  expressly,  re- 
nounced by  a  subsecpient  declaration  of  that  sovereign,  has,  Mr. 
Adams  assures  me,  not  been  touched  upon  in  the  abov^e-mcntioned 
treaty.  Mr.  Adams  seemed  to  consider  au}-  formal  stipulation  record- 
ing that  renunciation  as  unnecessary  and  supererogatory."  liritish 
Case,  App.  Vol.  3,  p.  66. 

It  is  to  be  observed,  in  reference  to  this  letter,  that  it  was  written 
many  months  prior  to  the  interview  with  IJaron  Tuyll,  and  only  a  few 
days  after  the  treaty  of  1824  had  reached  the  United  States  Depart- 
ment of  State.  Besides,  if  the  writer  of  that  letter  understood  IMr. 
Adams  to  say  that  the  question  of  free  luivigation  and  fishing  by  tlie 
citizens  and  subjects  of  Russia  and  the  United  States  in  the  Pacific 
Ocean  had  "not  been  touched  upon  in  the  treaty"  of  1824,  it  is  clear 
that  he  nuist  have  wholly  misapprehended  the  observations  of  the 
American  Secretary  of  State.  The  treaty,  upon  its  face,  shows  just  tiie 
contrary.  M.  de  Poletica,  it  will  be  remembered,  at  tlie  very  outset  of 
the  negotiations  between  Kussia  and  the  United  States,  expressly 
waived  the  (juestion  of  the  right  of  Kussia  to  regard  the  whole  sea 
between  the  North  American  and  Asiatic  continents  north  of  51° 
north  latitude  on  one  side  and  45°  north  latitude  on  the  other  side, 
as  a  "shut  sea,"  and  only  insisted  upon  Kiissia's  riglit,  as  a  means 
of  protecting  its  colonial  industries  and  trade,  to  prevent  foreign 
vessels  from  C(miing  nearer  to  her  coasts  that  100  Italian  miles.  If  Mr. 
Adams  said  to  Mr.  Addington  tliat  the  question  of  more  clansnm  had 
not  been  touched  upon  in  the  treaty  of  1824  he  meant  only  that  the 
question  of  mare  dausum,  or  ''shut  sea,"  as  stated  in  its  broadest 
aspect,  but  expressly  waived,  by  M.  Poletica,  had  not  been  specifically 
disposed  of  by  that  treaty.  He  could  not  have  said  that  the  right  of 
the  subjects  and  citizens  of  the  two  countries  to  freely  navigate  and 
fish  in  the  open  waters  of  the  sea  was  left  untouched  by  the  treaty  of 

1824. 

11492 7 


9S 

That  (heat  Britain  sifjned  tlio  treaty  of  1S25  witliont  any  linowlcdfte 
tliat  the  treaty  of  1824  would  be  intcrjjrcted  otherwise  than  hy  its 
words,  a(!C!ordin{f  to  their  natural  sijunilication,  is  shown  by  the  h'tter 
of  Mr.  Stratford  Canning  (wiio  nej^otiated  the  ticaty  of  lS2."]i)  to  Mr. 
Geor;;e  Canning:,  under  date  of  Ajn-il  3-15,  LSl'o,  in  which  he  said: 
"Heferrinj;'  to  the  American  treaty,  I  am  assured  as  well  by  Count 
Nesselrode  as  by  Mr.  Middleton  [the  Ameri(!an  minister  at  St.  I'eters- 
burgj  that  tlie  ratification  of  that  instrument  was  not  aec()mi>anied  by 
any  exidanations  calculated  to  modify  or  affect  in  any  way  the  force 
and  meaning  of  its  articles.  But  1  understand  that  at  the  close  of  the 
negotiation  of  that  treaty  a  protocol,  inteiuled  by  the  liussians  to  Hx 
more  specifically  the  limitations  of  the  right  of  trading  with  their  pos- 
sessions, and  understood  by  the  American  envoy  as  having  no  sueh 
eflect,  was  drawn  up  and  signed  by  both  parties.  No  reference  what- 
ever was  made  to  this  paper  by  the  Kussian  plenipotentiaries  in  the 
course  of  my  negotiatious  with  them;  and  you  are  aware,  sir,  that  the 
art.des  of  the  convention  which  I  concluded  depend  for  their  force 
entirely  on  tlie  geneial  acceptation  of  the  terms  in  which  they  are 
expressed."  It  does  not  appear  that  any  such  proto(!ol  was  ever,  in 
fact,  executed;  at  any  rate,  we  have  no  evidence  that  it  was  executed. 

If  tliis  were  a  case  between  the  United  States  and  IJussia,  involving 
the  question  as  to  whether  the  treaty  of  1821,  in  using  the  words 
"Pacific  Ocean,"  covered  the  waters  of  Bering  Sea,  other  (ionsidera- 
tions  might  possibly  arise  than  tlujse  which  must  determine  that  ques- 
tion under  the  treaty  of  1825  with  Great  Britain.  Here  the  iiujuiry  is 
whether  Great  Britain  and  llussia  in  that  treaty  referred  to  ''Pacific 
Ocean"  as  including  Bering  Sea.  And  tluit  inquiry  can  only  be  deter- 
mined, apart  from  the  words  of  the  treaty  itself,  by  what  i)assed  betw^een 
the  representatives  of  those  two  countiies  during  the  negotiations 
resulting  in  the  treaty  between  tliem,  of  whi(!h  the  oidy  evidence  is 
found  in  the  letters  and  ollicial  documents  having  refereuee  to  those 
negotiations. 

Did  Bussia  and  Great  Britain  intend  that  Article  I  of  the  treaty  ol 
1825,  by  which  those  powers  agreed  that  their  respective  subjects 
"  shall  not  be  troubled  or  molested  in  any  pai't  of  the  Great  Ocean  com- 
nu)nly  called  the  Pacific  Ocean,  either  in  navigating  the  same  or  in 
fishing  therein,"  should  be  applicable  to  Bering  Sea?  Did  either  Gov- 
ernment at  the  time  the  negotiations  were  opened,  or  v  hen  the  treaty 
was  concluded,  regard  Bering  Sea  as  outside  of  the  ocean  "commonly 


99 


[eaty  ol 

|iihjects 

kii  com- 

|c  or  in 

n-  Oov- 

treuty 

|unoiily 


called  tlio  Pacittt;  Ocean"!  In  view  of  the  groinuls  upon  whieli  Great 
IJritaiii,  tluriiij;  negotiations  exten(lin}?over  llir<'e  years,  steadily  rested 
its  objections  to  the  Uliase  of  LSL'l,  can  it  be  presumed  or  supposed 
that  she  intended  to  leave  that  Ukase  in  force  an  to  the  waters  of  Ber- 
ing Sea  and  thereby  recognize  the  right  of  Kussia  to  pridiibit  IJritisli 
vessels  from  approaclung  any  of  the  coasts  of  that  sea  nearer  than  100 
Italian  nules? 

It  seems  to  me  that  ciiese  questions  nmst  all  be  answered  in  the 
negative.  What  waters,  according  to  the  understanding  of  Russia,  at 
the  date  of  the  treaty,  were  in  fact  embraced  in  the  Pacific  Ocean? 
Upon  this  point  there  is  scarcely  room  for  doubt.  In  the  letter  of 
Baron  Nicolay,  dated  Novend)er  12,  1821,  in  which  he  gave  notice  to 
the  British  Government  of  the  Ukase  of  1821,  he  states  tiiat  the  pos- 
sessions of  liussia  '•  extend  on  the  northwest  coast  of  America  from  the 
Bering  Strait  to  the  fifty-lirst  degree  of  north  latitude,  as  well  as  on 
the  coast  of  Asia  opposite  and  on  the  adjacent  islands,  from  the  same 
strait  to  forty  five  degrees,"  and  that  if  "  the  Imperial  Government  had 
strictly  the  right  to  close  to  foreigners  that  portion  of  the  Pacific 
Ocean  which  is  bounded  by  our  i)ossessions  in  America  and  Asia,  a 
fortiori,  the  right  in  virtue  of  which  it  has  just  adopted  a  much  less 
restrictive  measure  should  not  be  called  in  question."  In  the  letter, 
already  referred  to,  of  February  28,  1822,  in  whicli  M.  Poletica  stated 
fully  the  grounds  upon  which  Kussia  based  the  Ukase  of  1821,  he 
stated  that  the  first  discoveries  of  Kussia  on  the  northwest  coast  of 
America  went  back  to  the  time  of  Peter  I,  and  behinged  to  the  attempt 
made  towards  the  end  of  his  reign  "  to  find  a  passage  from  the  Icy  Sea 
into  the  Pacific  Ocean";  imi>lying  that  the  Icy  Sea,  which  is  now 
known  as  the  Arctic  Ocean,  was  connected  with  the  Pacific  Ocean. 
In  the  same  letter,  in  which  he  describes  the  limits  assigned  to  Kussian 
possessions  by  the  Ukase  of  1821,  M.  Poletica  states  that  "the  Kussian 
liossessions  in  the  Pacific  Ocean  extend  on  the  northwest  coast  of 
America  from  Bering  Strait  to  the  fifty-first  degree  of  north  latitude,  and 
on  the  opposite  side  of  Asia  and  the  islands  adjacent  from  the  same  strait 
to  the  forty-fifth  degree."  It  thus  appears  that  Kussia,  by  its  repre- 
sentatives, in  language  too  clear  to  admit  of  doubt  as  to  its  meaning, 
regarded  all  of  its  possessions  on  the  northwest  coast  of  America, 
extending  from  Bering  Strait  to  the  fifty-first  degree  of  north  latitude, 
as  being  on  the  Pacific  Ocean. 

It  is  equally  clear  that  Great  Britain  so  understood  the  matter.    In 


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no  dispatch  emanating  from  tlie  liritisli  Foreign  Office  is  there  any- 
tiling  iiMliuatiiig  that,  in  its  jiulginont,  Jeering  8ea  was  not  a  part  of 
the  Great  Ocean  commonly  called  the  Pacific  Occiiii,  or  tliat  its  Gov- 
ernment was  concerned  simply  about  navigation  and  fishing  in  tlie 
waters  south  of  the  Alaskan  Peninsula,  which  wjishcd  the  shores  of  the 
parti<!u]ar  territory,  limited  in  extent,  aiul  then  in  (lispute  lietwecn  that 
country  and  Russia.  On  the  contrary,  in  the  projvt  of  a  c(m''v'ntion 
which  Mr.  George  Canning,  on  the  iL'th  ot  July,  1<S21,  prei)ared  for  the 
consideration  of  Russia,  it  distint^tly  appears  that  Great  llritain  con- 
templated a  treaty  covering  all  the  coasts  and  waters  on  the  North 
American  coast  from  Bering  Strait  southward.  Article  i  in  that 
draft  provided:  "It  is  agreed  between  the  higli  contracting  parties 
that  their  respective  subjects  shall  enjoy  the  right  of  free  navigation 
along  the  whole  extent  of  the  Pacific  Ocean,  comprehending  the  sea 
within  Bering  Straits,  and  shall  be  neither  troubled  nor  molested  in 
carrying  on  their  trade  and  fisheries,  in  all  parts  of  the  said  ocean, 
either  to  the  northward  or  southward  thereof;  it  being  well  uiulerstood 
that  the  said  right  of  fishery  shall  not  be  exercised  by  the  subjects  of 
either  of  the  two  powers  nearer  than  two  marine  leagues  from  the 
respective  possessions  of  the  other." 

In  his  JettC'  inclosing  this  j}rojet  to  Sir  Chnrles  Bagot,  the  British 
minister  at  St.  Petersburg,  Mr.  Canning  said:  *' Y'our  Excellency 
will  observe  that  there  are  but  two  points  which  have  struck  Count 
Lieven  as  susceptible  of  any  question.  The  first  is  the  assuniption 
of  the  base  of  the  mountains,  instead  of  tlie  summit,  as  the  line 
of  boundary;  the  second,  the  extensi(m  of  the  riglit  of  the  naviga- 
tion of  the  Pacific  to  the  sea  beyond  Bering  IStraits.  As  to  the 
second  point,  it  is,  perhaps,  as  Count  Lieven  remarks,  new.  But 
it  is  to  be  remarked,  in  return,  that  the  circunjstances  under  which 
this  additional  security  is  required  will  be  new  also.  By  the  territ<)rial 
demarcation  agreed  tt)  in  this  ^proJct\  Russia  will  become  possessed, 
in  acknovledged  sovereignty,  of  both  sides  of  Bering's  Straits.  The 
power  which  could  think  of  making  the  Pacific  a  mare  clausum  may  riot 
unnaturally  bo  supposed  cai)able  of  a  disposition  to  apply  the  same 
character  to  a  strait  comprehended  between  two  shores  of  which  it 
becomes  the  undisputed  owner;  but  the  shutting  up  of  Bering 
Straits,  or  the  power  to  shut  them  up  hereafter,  would  be  a  thing  not 
to  be  tolerated  by  England.  Nor  couhl  we  submit  to  be  excluded, 
either  positively  or  <:oustructively,  from  a  sea  in  which  the  skill  and  sci- 


101 

ence  of  our  aeaineu  liaa  been  .and  is  still  employed  in  onterprisos  inter- 
estiuff  not  to  this  (ioiintry  alone,  but  to  the  wh(»lo  civili/i'd  world.  Tlie 
protection  fjiven  by  tiie  eonvention  m  the  Anicrican  coasts  of  each 
power  may  (if  it  is  thonj^ht  necessary)  be  exfeiided  in  terms  to  the 
coasts  of  the  Uussian  Asiatic  territory;  but  in  some  way  or  other,  if 
not  in  the  form  now  prescribed,  the  free  navijfation  of  Herin^'x  Straits 
and  of  tlie  seas  beyond  them  must  be  secured  to  us."  British  Vasej 
Vol.  2,  App.  (i'i. 

Of  course  Mr.  (Janniufj,  when  he  framed  the  aljove  draft  of  a  conven- 
tion regarded  the  waters  immediately  south  of  "the  sea  within  Bor- 
ing Strait"  as  part  of  tiie  Pacific  Ocean.  The  same  draft  shows  tliat 
he  contemplated  thi"  settlement  of  the  rights  of  the  two  nations  on  the 
entire  coasts  and  in  all  the  waters  south  of  Bering  Strait.  And  such 
evidently  was  the  purpose  of  Russia,  which  ottered  a  conn ter-/>ro;g<  of  a 
convention,  to  settle,  "according  to  the  principle  of  mutual  accommo- 
dation, the  boundary  between  tlieir  possessions  and  settlements  on  the 
northwest  coast  of  America,  as  well  as  divers  questions  relating  to 
commerce,  navigation,  and  tishing  by  their  respective  subjects  in  the 
Pacitic  Ocean."  After  defining  the  line  of  demarcation  between  the 
possessions  of  the  two  high  contracsting  parties  on  th«^  northwest  coast 
of  America  ami  the  adjacent  islands,  ami  according  to  tlie  vessels  and 
the  subjects  of  the  two  ]}<  „ers  the  rigiit  in  the  possessions  of  the  two 
powers,  as  defined,  for  ten  years  •'  to  freely  frefpient  the  gulfs,  harbors, 
and  creeks  in  those  parts  of  the  islands  and  of  the  cofist  which  are  not 
occupied  by  eitlier  Russian  or  English  settlements,  and  there  to  engage 
in  lishing  and  commerce  with  the  natives  of  the  country,"  the  Rnssian 
counter-projet  proceeds:  "Art.  IV.  In  future  no  settlement  shall  be 
formed  by  His  Britannic  Majesty's  subjects  within  the  limits  of  Russian 
possessions  set  out  in  Articles  I  and  11,  and,  in  like  manner,  none  shall 
be  formed  by  the  subjects  of  His  Majesty  the  Emperor  of  all  the  Russiaa 
outside  of  the  said  limits.  Art.  V.  The  High  Contracting  Parties  stipu- 
late moreover,  that  their  respective  subjects  will  have  the  right  to 
freely  navigate  the  whole  exte»it  of  the  Pacific  Ocean,  both  towards  the 
north  and  south,  without  any  liindrance  whatever,  and  that  they  will 
enjoy  the  right  of  fishery  iu  tlie  high  seas,  but  that  this  latter  right  shall 
never  be  exercised  \»  ithin  a  distance  of  two  marine  leagues  from  the 
coast  or  jiossessions — wliether  Russian  or  British.  Art.  VI.  His  Msyesty 
the  Emperor  of  all  the  Russias,  being  anxious  to  give  a  special  proof  of 
his  regard  for  the  interests  of  His  Britannic  Mi^esty'a  subjects,  i\nd  to 


I 


h 


102 

render  more  useful  the  success  of  tlio  enterprises  which  will  eventually 
result  in  the  discovery  of  a  passage  on  the  north  of  the  American  conti- 
nent, consents  that  the  freedom  of  navigation  mentioned  in  the  preced- 
ing article  shall  apply,  under  the  same  conditions,  to  tiering  Strait, 
and  to  the  sea  situated  to  the  northward  of  said  strait.  Art.  VII.  Any 
Uussian  or  British  ships  navigating  the  Pacific  Ocean  and  the  sta 
above  mentioned  that  may  be  obliged,  by  storms  or  by  damage?,  to 
take  refuge  in  the  respective  ports  of  the  High  Contracting  Parties, 
shall  be  allowed  to  refit  therein,  and  to  take  aboard  everything  neces- 
sary, and  to  sail  away  again  freely,  witliout  paying  any  otiier  charges 
than  port  and  lighthouse  dues,  which  shall  be  the  same  as  those  paid 
by  national  vessels."    British  Case,  Vol.  2,  App.,  6'-S,  69. 

Is  it  not  apparent  from  this  coimttw- projet  that  Russia  regarded 
the  "sea  situat«tl  to  the  northward"  of  Hering  Strait,  that  is,  the  Arctic 
Sea,  as  being  separated  from  the  Pacific  Ocean  only  by  the  waters  of 
that  Strait,  and  therefore  that  what  is  now  called  Bering  Sea  was 
regarded  by  the  Government  of  that  country  as  part  of  the  Pacific 
Ocean  I  If  Russia  did  not  then  regard  Bering  Sea  as  a  part  of  the 
Pacific  Ocean,  it  would  follow  that  the  privilege  given  by  Article  VII 
of  the  Gonni^r-projet  to  "Russian  or  British  ships  navigating  the 
Pacific  Ocean  and  the  sea  above  mentioned"  (the  sea  north  of  Bering 
Strait)  to  take  temporary  refuge,  in  case  of  storms  or  damage,  in  the 
respective  ports  of  the  two  countries,  could  not  be  exercised  by  a 
British  vessel  navigating  Bering  Sea.  A  purpose  to  make  such  a  dis- 
tinction ought  not  to  be  imputed  to  Russia.  It  ought  not  to  be  sup- 
iwsed  that  Russia  intended  to  assent  to  the  navigation  by  Britisli 
vessels  of  Bering  Strait  and  the  sea  to  the  northward  of  it,  and  yet 
restrict  the  right  of  navigation  in  the  waters  immediately  south  of 
Bering  Strait.  This  supposition  is  entirely  inconsistent  with  the 
declaration  in  the  conntar-projet  that  the  treaty  which  the  two  govern- 
ments were  seeking  to  negotiate  had  in  view  the  settlement  of  ques- 
tions relating  to  commerce,  navigation,  and  fishing  by  their  respective 
subjects  "  in  the  Pacific  Ocean." 

The  documentary  evidence  to  which  we  have  referred  all  tends  to  show 
that  Great  Britain  was  chiefly  concerned  about  the  assumption  by  Rus- 
sia, in  the  Ukase  of  1821,  of  exclusive  dominion  over  the  Pacific  Ocean, 
and  that  it  regarded  the  question  of  territorial  limits  on  the  continent 
of  America  as  subordinate  and  relatively  unimportant.  It  earnestly 
sought  the  repeal  of  au  edict  that  assorted  "exclusive  jurisdiction  over 


103 


show 
Rus- 
'cean, 
;inent 
jestly 
lOver 


ail  oronn  of  unmoasnrocl  oxtont."  It  witlulrew  its  offor  to  establish 
'ail  exclusive  fislicry  of  two  leajfiies  from  the  coasts"  of  tlu'i  respective 
countries,  and  sufjtgested  that  one  league  to  eiicii  power  on  its  own 
coasts,  as  recogni/ed  by  the  law  of  nations,  would  sullicu  and  was  all 
that  she  would  admit. 

Not  long  after  this  letter  of  December  8,  ISL'l,  the  treaty  between 
Uussia  and  (Ireat  IJritain,  in  the  An-in  above  given,  was  signed.  Mr. 
Stratford  Canning,  in  the  letter  informing  Mr.  (Icorge  <'iiiining  of  that 
fact,  said,  among  other  things:  "With  n'spect  to  Mering  Straits  I 
am  happy  to  have  it  in  my  power  to  assure  you,  on  the  Joint  authority 
of  the  Russian  plenipotentiaries,  tiiat  the  Kmpcror  of  Hussiii  has  no 
intenti(Mi  whatever  of  maintaining  any  exclusive  chiini  to  the  naviga- 
tion of  those  straits,  or  of  the  seas  north  of  them."  Is  it  to  be  supposed 
that  the  British  plenipotentiary  understoo«l  Russia  as  asserting  or 
reserving  exclusive  rights  in  the  sea  south  of  those  straits? 

In  view  of  this  array  of  documentary  evidence  the  Tribunal  is  asked 
to  tind  that  the  treaty  of  182.1  used  the  words  "Pacific  Ocean"  aa 
embracing  only  the  waters  of  liering  Sea.  If  we  so  declare,  then  our 
finding  will,  in  ettect,  be  a  declaration  that  although  (Ireat  Dritian,  dur- 
ing negotiations  covering  several  years,  persistently  demanded  the 
abrogation  of  an  edict  asserting  for  Russia  the  right  to  establish  a  liiuj 
100  Italian  miles  from  its  shores,  washed  by  seas  too  vast  in  extent  and 
too  immediately  connected  with  the  groat  oceans  of  the  world  to  come 
under  the  exclusive  Jurisdiction  of  jiny  nation,  she  finally  agreed  to 
withdraw  her  opposition  to  that  {issum[)tion  of  Jurisdicti(ui  so  far  as 
it  related  to  Bering  Sea,  more  than  1,000  miles  in  length  and  more 
than  1,200  miles  in  width;  and  this  notwithstanding  in  no  part  of  the 
voluminous  correspondence  prec<'diiig  the  treaty  ')f  1825  is  there  one 
word  that  expressly,  or  by  necessary  implication,  indicates  any  pur- 
pose on  the  part  of  Russia  to  demand,  or  upon  the  part  of  (Ireat  Britiau 
to  concede,  that  the  Ukase  of  1821  should  remain  in  force  as  to  Bering 
Sea,  as  distinguished  from  the  North  Pacific  Ocean. 

I  have  been  unable  to  reach  that  conclusion.  Nor  can  that  position 
bo  sustained  consistently  with  the  position  taken  by  Russia  itself  after 
1825  as  to  the  scope  and  ef!'e(;t  of  the  treaties  of  1824  and  1825.  The 
evidence  is  conclusive  that  Russia — whatever  may  have  been  em- 
bodied in  the  j)roceedings  of  the  Nessdrode  conference  after  the  treaty 
of  1824  was  signed — understood  both  treaties  to  have  annulled  the 
Ukase  of  1S2I  in  its  application  to  toreigii  vessels,  so  far  as  to  secure 


\':\\ 


i    i 


104 

to  the  oiti/.ons  of  (rroat  Hritiiiii  aiul  A  nii'iica  entire  froodom  of  "navi- 
gation and  ri;{iits  of  lishing  tlirou^hoiit  the  wliolu  of  Bering  Sea,  out- 
side of  territorial  \vat«'rs. 

[nTi(!knienief'8  "Historical  Review  of  the  formation  of  the  Rnasi.an 
AinericianCoinpany  and  tlu'.ir  proceeding's  to  tliepresenttinie",  published 
at  St.  Petersburj;  in  180.3  {Part  /,  pp.  130-139),  it  is  said:  "  Jn  lS4li 
Etolin,  governor  of  the  colony,  informed  thecoMipany  that  in  the  ctuirse 
of  his  tour  of  inspoiition  lie  ii.id  come  aeross  several  American  sliips. 
Altiiou^rh  circumstances  had  prevented  his  communicating  wiili  tiiem 
at  the  time,  lie  had  reason  to  believe  that  they  were  whalers.  In  cor- 
roboration of  this  he  stated  tliat  for  some  time  he  had  been  receiving 
reports  from  various  parts  of  the  colony  of  the  appearance  of  American 
whalers  in  the  neighborhood  of  tlie  harbors  and  shores  of  the  colony. 
Amongst  these  reports  the  most  noteworthy  was  that  of  Cai)tain  Kad- 
nikotr,  the(!ommander  of  the  comi)any's  ship  Xasliednik  Alexander,  who 
stated  that,  on  a  voyage  from  Sitka  to  Okhotsk,  he  had  iiailed  a  whaler 
flying  the  American  dag.  The  master  informed  him  that  he  had  come 
from  theSaudwicli  Islands  in  company  with  thirty  other  ships  to  whale 
on  both  sides  of  the  western  extremity  of  the  peninsula  of  Alaska  and 
the  eastern  islands  of  the  Aleutian  group  belonging  to  that  peninsula, 
and  that  as  many  as  200  whalers  were  coniing  from  the  United  States 
the  same  year.  Captain  Ivadnikoft"  also  ascertained  from  the  master 
that  in  18U  he  had  whaled  in  the  same  waters  in  company  with  lifty 
other  ships,  and  that  his  ship  secured  thirteen  whales,  from  which 
1,G00  barrels  of  oil  were  obtained."     liritish  (June,  Vol.  i,  App.  10. 

In  reply  to  an  application  by  the  Russian  An»erican  Company  to  pre- 
vent the  Americans  from  lishing  in  tiie  waters  of  the  colony,  the  Rus- 
sian foreign  odice,  in  IStU,  said:  "The  claim  to  a  marc  claitsuni,  if  we 
wished  to  advance  such  a  claim  in  respect  to  the  northern  part  of  the 
Pacific  Ocean,  could  not  be  theoretically  justifunl.  Under  Article  I  of 
the  convention  of  1824  between  Russia  and  the  United  States,  which  is 
still  in  force,  American  citizens  have  a  right  to  fish  in  all  parts  of  the 
Paeijic  Ocean.  But  under  Article  IV  of  the  same  convention,  the  ten 
years'  period  mentioned  in  that  article  having  expired,  we  liave  power 
to  Ibrbid  American  vessels  to  visit  inland  seas,  gulfs,  harbors,  and 
bays,  for  the  purposes  of  fishing  and  trading  with  the  natives.  That  is 
the  limit  of  our  rights,  and  we  have  no  power  to  prevent  American 
ships  from  taking  whales  in  the  open  sea.''''  Letter  from  the  JJepartment 
of  Manufactures  and  Internal  Trade,  December  11, 1S12,  No.51!)l,  Dielo. 
Arhh.  Kom.,  1812,  goda,  Xo.  14,  str.  7.    British  Case,  Vol.  1,  App.  40. 


105 


Apaiii,  in  1S4.'{,  tlii^  (|iic.stioii  was  presontod  to  the  Russian  Foroijjn 
Olliiui  wlu'tluu'  tho  claim  of  tniTijj;n<'rs  to  take,  wiiales  in  Kiissian  waters 
ought  not  to  ho  liuiitiMl  by  a  hue  <lrawn  at  a  distance  of  at  hnist  three 
h^a;j;ues,  or  nine  Italian  miles,  from  the  shores  of  the  colony.  The  Rus- 
sian Foreiffu  Ollice,  in  IHt.t,  said:  "The  llxin;;  of  a  line  at  sea  within 
whi(;h  lorei<,Mi  vessels  should  be  prohibited  f'-oin  whaling  otf  our  shores 
would  not  be  in  aiuionhinee  with  the  spirit  of  the  convention  of  1H2^ 
and  icinild  be  contrnrif  to  the  provisions  of  our  conrention  of  lS:i''t  irith 
Great  liritain.  >[oreover,  the  adoption  of  su<rh  a  measure,  without 
preliminary  nej^otiation  and  arran^jement  with  the  other  powers,  mi^ht 
h>ad  to  protests,  since  no  clear  and  uniform  a;;re«'nu»nt  has  yet  been 
arrived  at  amonjj;  nations  in  regard  to  the  limit  of  jurisdi(;tion  at  sou." 
liritish  Case,  V'tl.  /,  App.  41. 

Subsequently,  in  181(},  the  governor-jfencral  of  Siberia,  in  conse- 
quence of  what  were  r«^garded  as  new  agyressions  on  the  i)art  of  whalers, 
expressed  the  opinion  that,  in  order  to  limit  the  whaling  operations  of 
foreigners,  it  would  bo  fair  to  forbid  them  to  come  within  40  Italian 
miles  of  the  Russian  shores,  the  ports  of  I'etropavlosk  and  Okhotsh  to 
be  excliuled,  and  a  i>ayuuMit  of  100  silver  roubles  to  be  demanded  at 
those  ports  from  any  vessel  for  the  rigiit  of  whaling.  He  reconunended 
the  einph>yment  of  a  cruiser  to  watch  foreign  vessels.  But  the  Russian 
Foreign  Odice,  in  IS  17,  said:  "  IVe  have  no  riyht  to  exclude  foreigi; 
ships /Vom  that  part  of  the  Great  Ocean  which  separateit  the  eautern  shore 
of  Siberia  from  the  northwestern  shore  of  America,  or  to  make  the  pay- 
ment of  a  sum  of  money  a  condition  to  allowing  them  to  take  whales." 
British  Case,  Vol.  1,  App.  41. 

Of  (!ourse,  the  waters  here  referred  to  included  the  whole  of  Bering 
Sea,  and  the  language  used  by  the  Russian  Foreign  OlTico  leaves  no 
room  to  doubt  that  Russia  regarded  Bering  Sea  as  part  of  the  "(Ireat 
Ocean."  Nor  can  we  suppose  that  Russia,  after  the  treaty  of  1825,  re- 
garded tiie  prohibition  in  the  Ukase  of  1821  against  fiu'eign  vessels 
approachi»ig  its  shores  nearer  than  100  Italian  miles  as  in  force  against 
the  subjects  of  Great  Britain,  or  against  the  people  of  any  nation  at 
the  time  of  the  cession  of  1807  to  America. 

It  may  be  said  that  the  othcial  declarations  of  the  Russian  Foreign 
Oflice  as  to  the  spirit  and  meaning  of  the  treaties  of  1821  and  182a 
had  reference  to  the  hunting  of  whales  and  not  to  the  hunting  of  fur 
SBcals.  But  there  is  no  ground  to  supi)ose  that  foreign  vessel  employed 
in  liuutiug  whales  ia  Bering  Sua  had,  in  the  judgment  of  the  high 


106 


tl' 


(jontractinff  parties,  any  loss  rijilits  tliaii  tliose  fniploycil  in  tho  hunt- 
ing of  fur  soals  in  the  same  waters.  Tliere  is  no  trace  in  tlie  reionl 
of  any  purpose  upon  tlie  part  of  Russia  to  claim  lar;j;er  riylits  in  tl'c 
oj>en  waters  of  Herinff  Sea  in  respect  to  tlie  Inuitinj;  of  fur  seals  tliau 
in  respect  to  tlio  lnuitinfj  of  whales.  In  fact,  i)rior  to  1S(»7,  tlu-re  was 
no  such  thiny;  known  as  the  hunting  of  these  fur  seals  in  the  high  seas, 
except,  perhaps,  a  few  were  taken  by  the  natives  along  the  coasts  with 
spears  and  harpoons. 

There  is  one  argument,  in  support  of  the  contention  that  "Pacifl(! 
Ocean"  in  the  treaties  of  1821  and  IHl'odo  not  include  ISering  Sea,  whi«h 
deserves  examination.  It  is,  that  upon  a  vast  number  of  maps  pub- 
lished prior  to  lS'2'i  the  waters  north  of  the  Aleutian  Islands  and  be- 
tween Alaska  and  Siberia  w(ire  designated  separately  from  the  waters 
south  of  those  islands,  and  that  if  Hussia  ami  (Ireat  Mritain  intended 
that  the  treaty  of  1825  should  embrace  the  waters  of  JJering  Sea  some 
referen(!e  would  have  been  made  to  that  sea  in  the  form  of  words  used 
on  maps  designating  it  as  a  separate  body  of  water.  To  Mr.  Blaine's 
letter  of  December  17,  181)0,  is  attached  a  list  of  10i>  maps,  covering 
tho  period  from  1743  to  1821),  showing  that  on  those  maps  the  waters 
south  of  Ileriiig  Sea  are  variously  designated  as  the  Pacific  Ocean, 
Ocean  I'acilique,  Stilles  Meer,  theCJreat  Ocean,  Grand  Mer,  (Irosser 
Ocean,  the  Great  South  Sea,  Grosser  Sud  Sea,  North  Pacidc,  Mer  du 
Sud,  etc.  On  those  maps  the  waters  north  of  the  Aleutian  Islands 
are  as  a  general  rule  designated  specially,  sometimes  by  the  words 
*'Sea  of  Kamschatka,"  and  at  other  times  by  the  nan^e  of  "iJering 
Sea." 

But,  ui)on  examining  those  and  other  maps,  it  appears  that,  in  n.^st 
instances, the  words  "Sea of  Kamschatka"  and  "Bering  Sea"  are  ofttu 
in  letters  so  small  as  compared  with  tho  words  "  I'acilic  Ocean,"  "Greai 
Ocean,"  "Great  South  Sea,"  etc.,  lower  down  on  the  map,  as  tojustify  the 
conclusion  that  tho  former  body  of  water  was  regarded  as  a  part  of  the 
latter.  This  view  is  supported  by  the  fa<'t  that  on  many  charts,  and  in 
many  geographies,  encyclojx'dias,  and  other  publications  prior  to  and 
since  1825  (references  to  some  of  which  are  given  in  the  margin*)  Bering 

'Morse's  American  Gentiraphy,  London,  1794,  p.  6,10:  "Kussiiin  Empire.  Tliis 
ininieiise  cmiiiro  stretches  from  the  Ilaltic  Sea  ami  Sweden  on  tho  west  to  Kani- 
schatkn  and  the  I'ucilie  Oeeaii  on  the  oast,  and  from  th<-  Froxen  Oeean  on  tho 
north  to  about  the  furty-fourth  de^rree  of  latitude  on  the  south." 

Malham's  Xaral  Gazetver,  Londmi,  J7!)'),  Vol.  3,  p.  4:  "  Kauisehatk.'i  Soa  is  a 
largo  branch  of  tbo  Orioutal  oy  North  Taeitic  Oecau." 


107 


0  oltfcu 
'Greiu 
tify  tlio 

of  the 

1  and  in 
Ito  and 
llJciing 

This 
Ito  Kani- 
\\  on  tlio 

3oa  is  i\ 


Sea  was  often  referred  to  as  eonstitiitiiig  a  part  of  the  Paeiflo  Ocean  or 
South  Sea,  or  the  Xorth  PaciHe  Ocean.  Tljese  facta  exphiin  h«>\v  it  was 
that  tlie  treaty  of  lH2t  des(:ril)ed  the  Oreat  Ocean,  on  whicli  there 
HhouM  ho  freedom  of  navigation  and  Hshiufji  as  the  body  of  waters  com- 
monly <!alled  thtt  Pacilic  Oc««in  or  South  Sea.  This  <h>scription  was 
first  su;;;,'ested  in  tlie  projet  presented  to  the  Russian  (rovcrnment  by 
Mr.  .Mi<ldleton,  tlie  American  minister  .at  St.  I'etcrsbur};,  the  words  of 
whi(!li  were,  "in  any  part  of  tlie  (rreat  Ociean,  vulgarly  called  the  Pacific 
or  South  Sea."    American  State  Paperx,  Vol.  5,  j).  iUi. 


Ih'ul,  Vol.  1,  p.  43:  "  lioriug'a  SlrultH,  wLioh  ia  tlie  pasaiijju  fruiii  the  North 
Pucitic  Oceim  to  tln>  Arctic  Soa." 

nrooke'n  (Imcral  Gazetcei;  1S02:  "Borin^j's  Islaiul— An  island  In  the  Pa- 
cilic  Ocj-an." 

Monlijiore'a  Commercial  DicHonary,  1S0.1:  "  Kanisi^liatka — nonn<UMl  on  tlio  east 
an*l  sonth  by  the  North  Pauilic  Ocoan." 

Crultlwell'a  Xew  Universal  (lazeleer,  IfiOS:  "  Kainschiitka — Peninsula,  bounded 
on  the  east  and  sonth  by  the  North  Paritic  Ocean. 

ReeH*  ('iii'Joittv.lia,  Vol.  JH,  Loudon,  ISU). — "  Pacilic  Otjoan,  or  Soutli  Sea,  In  Koog- 
raphy,  that  vast  t>cean  which  soparatt-s  Asia  fr(»in  America.  It  is  called  I'acilio 
from  the  moib-rato  >reather  whi(di  the  first  marinerH  who  sailed  in  it  mitt  with 
between  the  tropics;  and  it  was  called  the  .South  Sea  because  the  Spainarda 
crossed  the  isthmus  of  Darien  from  north  to  south.  It  ia  properly  the  >. astern 
ocean  with  re<;ard  to  Ameri(!a.  Cioo<;ra[)hers  call  the  South  Sea  Mure  I'adjicum, 
the /'rtci/ic  Owdrt  as 'leini;  less  infested  with  storms  than  the  Atlantic.  »  •  • 
This  ocean  is  diviiicd  into  two  great  parts.  That  lying  east  from  Karnschatka, 
between  Siberia  and  Americii,  ia  eminently  styled  the  Eastern  or  the  Pacilic 
Ocean;  that  on  the  west  side  from  Kamschaika,  between  Siberia,  the  Chinese 
Mongoley,  and  the  Kwielly  Islands  is  called  the  Sea  of  Okhotsk.  From  the 
ditl'ercnt  places  it  touches  itassninea  ditfereut  names,  c.  <j  ,  (rom  the  place  where 
the  river  An.'ulyr  falls  into  it,  it  ia  called  the  Sea  of  Anadyr,  about  Kamschatka, 
the  Soa  of  Kamschatka;  and  the  bay  between  the  districts  of  Okhotsk  and 
Kamschatka  ia  called  the  Sea  of  Okhotsk." 

Encyclopedia  Mrlhodiqus  Gcoyraphie,  Paris,  Vol.  2,  p.  501:  "2d.  L'Ocdan  pacifi- 
que,  la  raer  dn  sud,  on  la  grand  mer,  qui  est  aitude  outre  lea  cAtea  orieutules 
d'Asio,  et  occidentalea  d'Ameriqne." 

(The  Piicido  Ocean,  the  South  Soa,  or  the  Great  Se.a,  which  is  situated  between 
the  coasts  of  Asia  and  the  western  coasts  of  America.) 

Encyclopodio  dn  Dix-Neuviemo  Sieclo  (Fh»cyclopiBdia  of  the  19th  Century), 
Paris,  Vol.  17,  p.  429;  Oedan  Pacilique  on  nier  du  sud,  appelde  aussi  grandu  Mer 
eutro  I'Amt^rique  et  I'Asio,  entre  le  corcle  polairodn  nord  et  eelni  du  and.  (The 
Pacidp  Ocean,  or  the  S.»utli  Sea,  called  .also  the  Great  Sea,  between  America  and 
Aaia,  and  between  the  niu'thern  polar  circle  and  the  southern.) 

lidiiihnrgh  Gaseh'cr,  1S32.  Vol.l,p.4Si:  "Uuhriug's  Island— au  island  in  the 
North  Pacitic  Ocean." 


!* 


108 

I  nm  of  opinion  in  view  of  iill  tlm  <ivi(l»Mic,o— wliioli  in(rliu^es  many 
(loiMinuintH  tliat  do  not  iippear  to  have  be<3n  l)roii^Hit  to  tlio  attention 
of  Mr.  Illaiiu;  (liii'in;i;  liis  corrcspitntliMU'i;  witli  Imu\  Hiilishury — tliatthe 
wonlH  I'ai'ilir  Ocean  in  tlie  treaty  of  lSi2r>  inclndiMl,  and  w(M'u  intended 
by  liuHHia  and  Oreat  Britain  to  ineiude,  tlie  waters  of  Hering  Sea  us 
]>artof  "tlie  (Iroat  Ocean  commonly  called  the  I'aciftc  Ocean." 

liespo(;tin^  tiie  seal  lisheries  in  Bering  Sea,  nan^od  in  the  first  and 
second  points  of  Arti(!le  VI  of  the  treaty — if  the  reference  bo  to  the 
fnr-seal  industries  conducted  under  the  license  or  authority  of  Uussia  on 
the  inlandn  situated  in  that  sea — it  is  clear,  from  the  records  in  our  hands, 
that  Uussia,  from  a  date  prior  to  the  beginning  of  the  present  century 
down  to  the  cession  in  IH(»7  of  Alaska  to  the  United  States,  had  the  ex- 
clusive right  to  such  llsiieries,  and  that  her  riglits,  in  that  regard,  were 

Qeneral  (iazeti'er,  London,  ISiS:  "  Hocriii;;;'^  Isliiiid — in  tho North  l*iicilic(Jcoiin." 

New  London  Gazetevr,  tS3G:  "Uooriiig's  Isluml— in  tlio  I'ikmUc." 

Edinhnviih(}a:eti!vr,  London,  fiiT,  Vol.  t, p.  412:  "  K.'kiiiHchatitiiCPeiiiiisiiln).  On 
the  Oils t>  it  has  tiie  Vurtii  P.icillc  Ocean,  and  on  thu  wunt  that  largo  gulf  of  it 
called  tho  Sea  of  Okhotsk." 

ArroiOHinilh's  (rraiinnar  of  Modern  Geociraphji,  lSt2:  "  Mhi'rin;^'8  Strait  connects 
tho  Frozoii  Oooan  with  tho  Pacidc.     Tho  Anadir  tlowH  into  tho  I'aci(i<!  Ocean." 

Pennji  Enciiclopv.lia,  London,  1340,  p.  110:  "Pacilic  Oooan  extemlH  hetwocn 
America  on  tlio  oast  and  Asia  and  Australia  on  tho  wotit.  >  *  •  It  in  callod 
tho  South  Sea,  buoauso  vossuls  sailing  from  Kuropo  can  only  outer  it  after  a  long 
southerly  oonrso.  The  name  of  South  Sea  has  been  limited  in  later  limes  to  the 
southern  portion  of  tho  PaciHc.  Tho  Pacilic  is  tho  greatest  expanse  of  water 
on  the  globe,  of  which  it  covers  more  than  one-half  of  the  surface.  •  •  • 
Uehriug's  Strait,  which  may  bo  consi<lercd  as  its  most  northern  boundary,  lies 
between  East  Capo  in  Atia  and  Cape  Prince  of  Wales  near  66'-'  north  latitude, 
and  is  less  than  iO  miles  wide." 

London  Encyclopedia,  1345,  Vol.  16,  p.  10.2:  Following  Malte  Broiin's  Pr6cia 
ue  la  Goographie  Uuivorselle,  this  book  describes  tho  Kastern  or  Oreat  PaciAc 
Ocean  as  embracing  among  other  waters  "the  Northoiistern  Ocean  between  Asia 
and  North  America,"  the  "sojis  of  Japan,  Kamschatka,  and  Bcering's  Strait," 
making  "a  part  of  it." 

Encyclopedia  Americana,  Philadelphia,  1345,  Vol.  9,  p.  476:  "Pacific  Ocean; 
tho  groat  mass  of  waters  extemliug  from  Hooriu;;'s  Straits  to  tho  Antarctic  Circle, 
a  ilistanco  of  3,200  leagues,  and  from  Asia  and  Now  Holland  to  America.  *  »  • 
It  was  at  first  called  tho  South  Sea  by  the  Kuropoau  navigators,  who  entered  it 
from  the  north.     Magellan  gave  it  tho  name  of  Pacific,"  etc. 

New  American  Cyclopedia,  by  Ripley  and  Dana,  1851:  "Pacific  Ocean:  Between 
longitude  70°  west  and  110'^  east;  that  is,  for  the  epaco  of  180^,  or  over  one  entire 
half  of  the  globe.  It  covers  tho  greater  part  of  tho  earth's  surface  from  Behring's 
Straits  to  the  Polar  Circle,  that  separates  it  from  the  Antarctic  Ocean." 

Harpu'tStatiaticalOazeteeroftha  World.    By  Smith.    Ntw  York:  18SS.    "iiiu- 


callfil 

u  long 

to  the 

water 


Prdois 
Pacific 
eu  Asia 
Jtrait," 


etween 

entire 

iriog'a 


109 

rero;jni7.(Ml  iiiul  coikmmIimI  by  (iirat  llrifaiii,  in  tlio  scnso  tliiit  tlittt 
country  never,  in  any  tWrni,  <liH|)ut<Ml  sncli  i-i;;lit,  altlion^li  neitlierdrcat 
Britain  nor  the  lTnit«Ml  States  ever  reco^^nized  or  eoneetled  even  the 
qualiliedjnrisiliction  ass<>rte<i  by  Kussia,  in  tUo  TUase  of  lHi*l,  to  tor- 
bid  t'oreif^n  vessels  l'ronia|>|>roaehin^  nearer  than  1(H)  Italian  miles  I'roni 
]ier  (roasts  or  islands.  In  respect  t^)  seal  llsheries,  it' any,  eondneted  in 
the  open  waters  of  Berin<;  Sen  ontside  of  territorial  waters,  Itnssia 
neither  lu^ld  nor  exelnsively  e\<;rcisu4l  any  ri^lit  nut  possudsed,  in  suuli 
open  waters,  by  all  other  nations. 

In  rospeot  to  the  fourth  point  of  Article  VI,  it  was  not  disputed  in 
ar};uinent  (as  of  cours(»  it  eouhl  not  be)  that  whatever  rifihfx — that 
is,  whatever   le;j[al   rights — Russia  had.  as  to  Jurisdiction   and  as  to 

§inii  Aniorio.'i  cninprlHt'H  tlio  wliuluof  thu  contiiu-nt  of  northwest  Anierica  went  of 
lon<;ituil(t  141^  woHt  and  a  Htri|i  on  the  coast  •■\(<>niliM);  south  to  liititinlo  iVt'' 
north,  boiin<lcd  on  the  east,  by  Kritisli  America,  south  tin«l  west  l>y  th<!  I'aclliu 
Ocean,  and  nortli  by  the  Arcti<!  Ocean,''  etc. 

Cifiilopedia  of  (ieofjraphii,  btj  Kn'xjht,  1S5i'<:  "lielirln^'H  Strait,  whicii  connects 
the  Pacitic  witli  the  Arctic  Ocean,  is  formed  by  the  itppruach  of  tlie  contiuentH 
of  America  and  Ania." 

McCullorh's  (icographical  Dirtionary,  bi/  Martin,  ISOO:  "Pacific  Occiiu:  Its  ex- 
tremis Houtlicrn  limit  is  tlie  .Vntarctic  ('irch;,  from  wliich  it  stretches  norlhwiird 
through  132^  of  latitude  to  Uohring  Strait,  which  Bci)aratcH  it  from  tiie  Arctic 
Ocean." 

lihckie's  Imperial  Gmvtcer,  Loudon,  1S74,  Vol.  2,  p.  S.'iS :  "In  the  north  the 
Pacific  gradually  contracts  in  width;  the  continents  of  America  and  Asia, 
stretching  out  and  a|>pro.Kiniating,  so  as  to  leave  the  comiiaratively  narrow 
channel  of  Hohring's  Strait  a.s  the  only  communiciition  between  tlie  Pacific 
and  the  Arctic;  Oceans." 

Amerir.ati  Ci/ciopcdia,  Xew  York,  IS75,  Vol.  1,  p.  ■iSO:  "BehringSoa.  Tliat  part 
of  the  Pacilii!  Ocean  which  lies  imuicdiately  south  of  Huhring  Strait." 

Encyclopedia  Itrilannicu,  KdinhnrfiU.  Xinth  Ed.,  1S75-1S90,  Vol.  IS,  p.  115: 
"The  Pacific  OciMin  is  bounded  on  tlnuiorthby  nehriug's  Strait  and  the  coasts  of 
Russia  and  Alaska.  *  *  *  It  cxtcmlH  tlirongli  132-'  of  latitude;  in  other 
words,  it  moiisurcs  9,01)0  miles  from  north  to  south.  From  e:wt  to  west  its 
breadth  varies  from  about  40  miles  at  Kehriiig's  Strait,"  etc.  In  the  English 
edition  it  is  stated  iu  u  footnote  that  the  Pacific  Ocean  was  formerly  called  the 
South  Sea. 

Worcester's  DioHonirtj  of  the  Eii'ilinh  Lanffnaf/e,  Philadelphia,  ISS7:  "Behring 
Sea:  A  part  of  the  Pacific  Ocean  north  of  the  .Vhiutian  Islands." 

<!hamher»'»  (Uivlopirdia,  ISSS :  "  Itidiring  Strait  conne(!ts  the  Pacific  Ocean  witli 
the  Arctic  Ocean.  Hehring  Sea:  A  part  of  the  Pacific  Oceau  commonly  kuuwn 
as  the  Sea  of  Kamchatka." 


i 

!■■ ' 

si  i 

1:1 
|u 

Li 
it  < 

>j 

!)' 

ji; 

lii 


110 

seal  fluhorloH  in  Hcring  Hoii  oast  of  the  wuter  boundary  ileflned  in 
tlie  treaty  of  Maic.lt  .10,  I.S07,  liotwuun  UiLSMia  and  tin;  United  States, 
passed  nniini>aii'ed  to  the  United  Htate.s.  Slie  conveyed  all  Iter  terri- 
t(»ry  and  dominion,  and  all  the  ri;;hts,  franchises,  and  i>i-ivile;;es  whieh 
Hhe  possessed  in  such  territory  and  doniini(»n,  within  the  limits  defined 
by  that  treaty,  free  and  uniucund>ered  by  any  reservations,  privilejfes, 
grants,  or  possession,  by  any  company  or  individuals.  The  tieed  of  (ses- 
sion of  1807  necessarily  embraced  all  of  Uussia's  righU,  whatever  they 
were,  in  the  fur  seals  freipientinji;  the  Pribilof  Islands,  and  in  the 
industries  trarried  ou.  there  fur  more  than  three-quarters  of  a  century 
prior  to  1807. 

If  I  am  correct  in  the  views  above  expressed,  the  answers  to  the 
first  four  points  of  Article  VI  should  be,  substantially,  as  follows: 

To  thcJirHt. — I'rior  to  and  up  to  tlie  tinu;  of  the  cession  of  Alaska  to 
the  United  States,  Russia  did  not  assert  nor  exercise  any  exclusive 
Jurisdiction  in  HeriiiK  Sea,  or  any  exclusive  rights  in  the  fur  seal  fish- 
eries in  that  sea,  outni(lc  of  ordinary  territorial  icutern,  except  that  in 
the  Ukase  of  1<SLM  she  did  assert  the  rijjht  to  prevent  foreign  vessels 
from  approaching  nearer  than  100  Italian  miles  the  coasts  and  islands 
named  in  that  Ukase.  Hut,  pending  the  negotiations  to  which  that 
Ukase  gave  rise,  Russia  voluntarily  su8[>ended  its  execution,  s.)  far  as 
to  direc^t  its  olllcers  to  restrict  their  sui  eillanco  of  foreign  vessels  to 
the  distance  of  cannon  shot  from  the  shores  mentioned,  and  by  the 
treaty  of  1824  with  the  United  States,  as  well  as  by  that  of  I82r> 
with  Great  Rritain,  the  above  Ukase  was  withdrawn,  and  the  claim 
of  authority  or  the  [jower  to  prohilut  foreign  vessels  fnun  approaching 
the  coasts  nearer  than  lUO  Italiau  miles  was  abandoned,  by  the 
agreement  embo(lie<l  in  those  treaties  to  the  effect  tiiat  the  respective 
citizens  and  subjects  of  the  high  contracting  parties  should  not  be 
troubled  or  nu)lested,  in  any  part  of  the  Great  Ocean  commonly  called 
the  Pacific  Ocean,  either  in  navigating  the  same  or  in  fishing  therein, 
or  in  landing  at  such  parts  of  the  coast  as  shall  not  have  been  already 
occupied,  in  order  to  trade  with  the  natives,  under  the  restrictions 
and  conditions  specified  in  other  artii'les  of  those  treaties. 

To  the  nccond. — Great  Britain  never  retjognized  nor  conceded  any 
claim  by  Russia  of  exclusive  jurisdiction  in  Bering  Sea,  nor  of 
ex<!lusive  rights  as  to  the  seal  fisheries  therein,  outside  of  ordinary 
territorial  waters;  although  she  did  recoguize  and  concede  Russia's 


icd  ill 

itates, 

U'lri- 

whuth 

U'Hiivd 

of  ces- 
jr  tliey 

ill  the 
•eiituiy 


to  the 

foUows: 
laskii  to 
scUisivo 
cal  ilsh- 
that  ill 
I  vessels 
ishiiids 
icli  that 
)  far  as 
Ijsscls  to 
by  the 
of  ISLM 
le  clanii 
oaching 
by  the 
pective 
uot  be 
called 
|tlierein, 
already 
rictious 

^ed  any 

nor  of 

Irdinary 

Uussia's 


111 

exrlusive  jtirisdiction  within  \wi'  own  territory  and  such  Jurisdiction 
inside  of  territorial  waters  as  was  consistent  witii  the  law  of  natioiiH. 

To  the  third. — The  body  of  water  now  known  ais  Heriti);  Sea  was 
iiielnded  in  the  i>hras(>  "I'ucitle  Ocean"  as  nsed  in  the  treaty  of  ISUa 
between  Great  Britain  and  liiissia,  and,  after  that  treaty,  Unssia 
neither  lielil  nor  exercised  any  ri^^hts  in  the  waters  of  IW-riiijc  Sea.  out- 
side of  ordinary  territorial  waters,  that  did  not  belong  in  the  sann;  waters 
to  other  conntries. 

To  the  fourth. — All  the  rights  of  Unssia  as  to  jnris«li<!tion,  and  as  to 
the  Heal  tisheries  in  ISering  Hea,  east  of  the  water  lioundary  in  the 
treaty  between  the  United  States  and  lliissiaof  Manth  30, 1807,  luissud, 
'iiider  that  treaty,  unimpaired  to  the  United  Stale'. 


TIIK  KI«SII'r  OF  PKOPKRTV  AMMKHTKU  HV  TIIK  I'.HITKW  MTATKM 
IK  TIIK  VKfnii.OV  IIKKD  OF  MKAi.M.  \mn  ITH  lllil^  !•!'«'.  WIIKTIIKK 
AM  n\\  ■  I  i\  Ol^  Tllli:  IIKHU,  OK  Ml.fll'I.V  AM  OV  \  t-.H  OF  TIIK  VVH 
MKAI.  I.^IUI'MTKV  Oa  TIIK  PHIHIi.OW  IMIiAMD^t,  TO  l*KOTK('T  TIIK 
rir;\I.N  ACDAINMT  FKIiA«JI€  MKAI.IN«J. 

I  como  now  to  tlie  most  important  and  interestinp;  question  i)reseiited 
for  determination,  namely,  that  involved  in  the  lifthpoint  of  Article  VI 
of  the  Treaty: 

"///j«  the  United  States  any  right,  and  if  so,  what  rujht  of  protection  or 
property  in  the  fur-seals  frequenting  the  islands  of  the  United  States  in 
Bering  Sea  when  such  seals  are  found  outside  the  ordinary  three-mile 
Urn  it  f" 

It  is  necessary  to  a  i)roper  understanding  of  this  question,  in  its 
bearing  ui)oii  the  general  subject  of  the  preservation  of  this  race  of  ani- 
nulls,  tiiat  we  recall  the  facts  (never  before  so  fully  develoj)ed  as  in  the 
evidence  now  adduced)  touching  their  history,  nature,  and  habits  as 
well  as  the  results  that  necessarily  follow  from  hunting  and  killing 
them  in  the  high  seas.  These  facts  should  be  clearly  a  pprehended  before 
we  enter  upon  the  consideration  of  the  princii>les  of  law  and  justice 
applicable  to  the  case.  They  should  be  )»rought  together  here,  even  at 
the  risk  of  some  repetition. 

These  facts — stating  only  such  as  are  admitted  or  .;>re  established  by 
overwhelming  evidence — are  as  follows: 

1.  The  animals  in  question  belong  to  the  species  conuiionly  designated 
by  naturalists  as  the  Northern  Fui'  Seal,  and  are  valuable  for  imrposes 


k. 


112 


m 


ofniiiiMMitaiKl  r«MHl,  Tlio  nu'«i  lias  only  CourbnM'diiijxplaj'os:  Coinmamlef 
Islaihls,  ill  t  lie  west  nil  >  tart  of  Hci'iii^ScajicarllM'coastot'  Asia;  ItoliluMi 
K«'t't',  ill  tlu' Sea  of  Okliotsk  ;  llu^  Kiirilc  Islands,  on  tlic  wrst  side  of 
tho  Pacitir  Ocoaii,  near  the  coasts  of  Japan  ami  Asia  ;  ami  the  islands 
of  St.  Paul  and  St.  (icorjio,  part.of  tiio  I'liltilof  ;,M'oiip  in  Itcriiiti-  Sea. 
Tlio  I'ribilof  vs«>als  so  far  dilVcr  from  others  of  llui  NoitluMii  l-'iir  Seal 
s|)»'cies  that  their  pelade  can  readily  be  distin^iiished  by  exjieits  IVoiii 
that  of  the  seals  of  oilier  herds. 

li.  The  lakiiijj  or  Uilliiij;-  of  fur  seals,  for  eoimiu'reial  purposes,  at  the 
islamls  of  St.  Paul  and  St.  (leorjje,  during'  tin*  eij^hty  years  of  Ifnssia's 
ownership  of  the  Pribilof  Ishimls,  was  eondnetetl  under  the  lieeiise 
or  authority  of  that  nation.  And  the  exclusive  rij-ht  of  Ivussia,  diir- 
iii!;'  that  period,  t.«)  control  that  business,  so  conducted,  for  its  excliisivo 
beiu'lit  or  for  the  advant.ijje  t)f  its  subjects,  was  not  disimted  by  any 
other  country. 

."5.  Hya.joint  resolutitui  of  tlieConjjress  of  the  ITnit«'d  States.apjiroved 
Marcli  ;»,  isr»!),  providinjx  for  the  more  ellet'tive  protection  of  the  fur 
seal  in  Alaska,  the  islands  id"  St.  Paul  and  St.  (ieor};e — which,  with 
other  islands  in  IW'iinn'  S»'a,  l)ecaim'  the  property  of  the  United 
States  by  virtue  of  the  cession  from  Knssiaof  March  M),  IS(»7 — were 
declared  to  be  "a  special  K'escrvatiou  for  (Joveriimeiit  purposes;''  and 
it  was  made  unlaw  ful  for  any  person  to  laud  or  remain  on  either  of  the 
two  islands  named,  exce[)t  by  the  authority  of  the  Secretary  of  tlie 
Treasury:  any  pcrs(ni  foiuid  on  either  island  without  such  authority 
beiiifi' liable  to  be  summarily  removed. 

SiibseipuMitly,  by  an  ;ict  of  ('on<;iess,  entitled  "An  act  to  prevent 
the  exterminatiou  of  the  fur  bearing  animals  in  Alaska,"  approved 
fluly  1,  IS70,  it  was  made  unlawful  to  kill  any  fur  .seal  upon  the  islands 
of  St.  Paul  and  St.  (Jeorjife. or  in  the  waters  adjacent  thereto  (except 
during  certain  named  mouths),  or  to  kill  such  seals  at  any  time  with 
firearms,  or  to  use  any  uu'ans  that  tended  to  drive  the  seals  from  the 
islands:  the  natives  on  the  islands  beinj;-,  however,  alloweil  the  priv- 
ilege (subject  to  rejiulations  prescribed  by  the  Secretary  of  the  Treas- 
ury) of  killinji'.  during'  other  months,  such  yomijjf  or  old  seals  as  were 
necessary  for  food  and  clolhiny.  By  the  same  statute  it  was  made 
unlawful  to  kill  any  female  seal,  or  any  seal  less  than  one  year  old,  at 
any  season  of  the  year  (except  as  provided  in  the  case  of  natives),  or 
to  kill  any  seal  in  the  waters  adjatent  to  the  islands,  or  on  the  beaches, 
elitVs,  or  rocks  wheie  they  hauled  up  from  the  sea  to  remain;  any  per- 
son violating  the  above  provisions  or  either  of  them  being  made  liable 


lands 

with 
in  the 
priv- 

'I'lCilM- 

wero 
nnule 
)hl,  at 

es),  or 

u'hcs, 

y  piT- 

liable 


ll.i 

to  a  line  of  not  less  th:in  A'JOO  nur  nunc  than  *l,(((»»,  or  to  iinprison- 
int'iit  not  <'\('*'*-i|jni;  si\  tnonllis,  or  liolli  to  snrli  line  :in<l  inipi  i-onnK'Ht. 
al  (hr  (lisnrlion  of  lln'  consl  l>a\inL;  rdniii/ancr  ol'  lln-  otVciisc;  all 
vt'sst'ls,  thfir  lacUIr,  apparel,  anti  rnniit  iii'i>,  wlnisr  m-w  wcir  toiiiMl 
('n;;a;;ctl  in  violaliii:;  thr  piosisions  of  tin*  act,  to  lio  loilcitctl  to  Hit- 
llnilcd  Stales. 

'Tlir  sann-  ael  piovldrd  Hial.  for  tii*>  jK-iiod  ol'twenly  yrai's,  llir 
iininlMT  of  seals  kilietl  tor  tlirir  skins  slioniti  lie  liniiteti  to  7ri,(MK)  pei' 
annum  npmi  tiie  island  ol°  SI.  I'anl,  and  L'.>,(MMI  npmi  llie  isl.ind  ol' 
St.   (ieor^^c;  snitjecl,  however,  l<»   lln-   power   of   llie   Secretary   ol   tiie 

Treasury    (o   limit    the  ri^lit,  of  killin;^',  if  that    siionld   1 mm-  neces 

sary  lor  tin'  presersalion  of  llie  seals,  with  sneli  jMoptnl  ioinitc  redne 
tion  ol  the  rents  reserved  to  t  he  ( iovernnient,  as  was  rii^lit  and  proper, 
'i'he  Secretary  was  reipiircd  to  h'as(^  for  Hie  term  of  twenty  years,  to 
proptM'  and  respcnisilile  parties,  for  the  l»est,  ad\  anla;;e  of  Hie  ( Mtvcrii 
tiieiit,llie  native  iiihai>itant s,  llieir  eoinfoi't,  niainteii;inc(%  and  ediiea 
lion,  as  well  as  to  the  inlercsl  ot' Hie  pari  ies  previously  e.ii,'ia;;ed  in  tlii^ 
trade,  and  the  prolertion  ollhe  far  seaN,  I  ho  ri^lil  to  (-ii^a^ie  in  tiie 
hnsiiiess  (tl  takiiiLj  fiii'  seals  on  uii'  islands  of  St.  Tan  I  and  Si.  ^  ie(n';;f, 
and  to  .send  a  vessel  or  vessels  to  those  islainls  for  the  slxins  of  the 
seals;  lakiny'  Iroiii  the  lessee  or  lessees  hoiid  with  siillicieiit  siiieties 
ill  the  sn  in  of  not  less  than  i^oDll.^MM),  cDiiditioncd  for  Hie  fa  i  III  In  I  oii>erv- 
anee  of  all  tlie  laws  of  (^oiii^iess  and  oi'  the  re^nlatious  of  the  Secre 
tary  of  th(«  Treasury,  toucliiii;;'  Ihesnhjecl  malter  ol  takiii;^  fnr  seals, 
and  disposin;;' of  the  same,  and  for  I  he  pay  ineiil  of  all  la\es  and  dues. 
It.  was  further  provided,  that  at  Hie,  end  of  the  lease,  oilier  like  leases 
could  he  made;  hut  no  persons  other  than  .Aineiicaii  eili/ens  wei*' 
perinilted  to  occupy  the  islands  or  either  of  tlicin,  for  the  pnrpctse  of 
lakin<;the  skins  of  fur  seals,  noi'  any  vessel  allow  e. I  to  eii.!4a.ij;t'  in  takiiin' 
such  skins;  any  lease  made  liy  Hie  Secrelarv  of  the  Ticasiiiy  hein^ 
subject  to  forleiture  if  it  was  Ir'ld  oi'  opeialed,  diicclly  or  indirectly. 
for  the  use,  heiielit,  or  advaiita;.;e  of  any  person  other  than  .Vmerican 
eitizens. 

These  and  <»tlier  piovisions  havinu' for  I  licii' oltjeet  the  nlili/ation  of 
these  aninnds  for  pu'-posi  s  of  reNcnne  and  coinmeice,  and  their  pro- 
tection a;;ainst  iudisciiminate  slan;;hter  on  the  islands,  or  in  the 
iwljacent  waters,  were  preserved  in  the  KNn  ised  iSLiiLiitcsoi'  the  Uuited 
Stales  of  IS?;;,  §^  l!)."il  to  11)70,  inclu.sive. 
1  U'JJ 6 


114 


I 


By  anotlifti"  act  of  (Congress,  iii))nove<l  INrardi  2, 1SS9,  it  was  pi()vi<liMl 
tliat  section  l".>.l(>ol' the  Rt!vi«c(l  Statutes,  prohibitiii'''  the  killiii<;of  any 
otter,  mink,  marten,  sable  or  seal,  or  otiier  fur  bcaiin,!;  animal,  within  the 
limitsof'Ahiska'i'erritoryorin  the  waters  thereorwasdechued  to  incliuU' 
and  ajjply  to  all  the  dominion  of  the  United  States  in  the  waters  ot 
JJerinj"'  Sea;  and  it  was  made  the  duty  of  the  I'resident,  at  a  timely 
season  in  each  year,  to  issue  his  proelamiition  and  cause  the  same  to  be 
published  at  each  United  Stat<vs  jiort  of  <!ntry  on  the  Paeilic  coast, 
warning;' all  peisons  a,!;ainst  enterinj;  those  waters  for  the  purpose  of 
violatin]i;'  the  provisions  (»f  that  section. 

4.  The  I'libilof  herd  is  found,  en,  mauNc,  every  year  on  the  islands  of 
St.  I'aul  and  St. (Jeor,i;e.  They  leniain  there  alMHit  four  oi-  live  months. 
iMuch  lon};er  time  intervenes  between  the  first  ai-rival  of  some,  and  the 
depaitnre  from  the  islands  of  those  who  last  leave  them  for  thes<'ason. 
The  pcu'iod  durin;;'  which  the  herd  abi<les  on  those  islands,  is  calletl 
the  breeding;-  season.  They  return  there  re^idarly  for  tlu^  i)urpose  of 
breedinji'  and  leariny  their  youni;',  and  of  shedding;'  and  renewing  their 
coats  of  fur. 

r».  The  bicedinij  males,  called  bulls,  urrive  in  the  early  part  of  May 
or  by  the  middle  of  that  month.  I'^acli  bull,  immediately  alter  coming 
from  the  sea,  establishes  himself  u|)on  tht^  rocky  beach,  appr(»priatin,i; 
as  much  space  as  will  be  needed  tor  his  female  coni|>aiiions  after  tiicy 
arrive.  The  nou  l)rceding  males,  or  bachelors,  airive  (lurin<>'  t!ie  sanu' 
month,  and  take  position,  sul>stantially  in  a  body,  and,  as  a  j;'eneral 
rule,  in  the  rear  of  the  spaces  occupied  by  the  bulls.  Scunctimes  the 
bachelors  oc<;upy  spaces  near  the  water,  but  separate  from  those 
oci'.upicd  by  the  bulls  and  their  female  com|»anions.  Marly  in  .lune  tlu^ 
female  seals,  calh'(l  cows,  bej;iii  to  emcrjie  in  bodies  oi'  «irovcs  from  the 
sea,  and  to  enter  the  spaces  provided  for  them  by  the  l)ulls.  l>y  the 
loth  of  .July  sulistantially  the  entire  herd  is  eslablislu'd  on  the  islands. 
lOach  bull  api)ropriates  for  the  season  at  least  lilteeii  or  twenty  female 
seals. 

Within  a  few  hours,  it  may  be,  always  within  a  few  days,  after  reach- 
in.ti'  the  islands,  the  mother  seal,  impre;n'nated  dui'inj;'  the  breedinj;- 
season  of  the  previous  year,  jj^ives  birth  to  a  single  pup,  the  period 
of  gestation  being  eleven  or  twelve  months,  the  i>nps  born  being 
about 


<1' 


illy 


pup.< 


the  islands  during  the  breeding  season.  Cohabitation,  for  any  ellective 
purpose,  in  the  water,  is  iinpossiblo.    The  females  ai)pear  to  have  uu 


116 


'!•  tlicy 
('  same, 

Mies  the 
those 

uno  tlic 
(»iii  the 
IJy  the 
shiiids. 
leiiiaU' 

r  reach- 
r<'('(liit.i;' 
period 
II  beiiij;' 
'ived  oil 
'Hective 
iiive  au 


unerriiijLj  instinct  as  to  the  time  when  the  period  of  jjestation  will  end. 
Tiie  cows,  after  beinj;'  delivered  of  tiieir  pups,  remain  for  a  U'w  weeks 
with  the  bulls  by  whom  th(\v  have  been  appropriated.  They  >xo  from 
the  islands  into  tiie.  sea  as  often  as  natnri^  su.n';iests  to  be  neci-ssary  for 
the  purpose  of  obtainin,i;'  tish  for  tb(td  by  wiiieh  they  are  nourished  while 
sueklin;;  their  yonnj;.  A  cow,  while  nursinjjf  its  pnp,  oft«'n  ^-oes  h)njj 
distances  from  the  islands  in  search  of  lish.  Capt.  Sliepard,  oftlM-  Tnited 
►States  Marine  service,  who  examined  the  skins  taken  from  s<'alin<x  v«'S- 
sels  seized  in  1887  and  1880,  over  1L!,(M)0  in  number,  two  thirds  or  three- 
fourths  bein^f  the  skins  of  females,  says:  "Of  the  U-males  taken  in  the 
I'acific  Ocean,  and  early  in  tlie  season  in  r»erinj(  Sea,  nearly  ail  are 
heavy  with  younii",  and  the  death  of  the  female  necessarily  «'anses  the 
death  of  the  uid)orn  pnp  seal;  in  fact,  I  liav«'  seen  on  nearly  every  vessel 
seized  the  pelts  of  unborn  pups  which  had  been  taken  from  their  mothers. 
Of  the  females  taken  in  Uerinj;  Sea  nearly  all  are  in  milk,  and  1  have 
se»^n  the  milk  come  froni  the  carcases  of  dead  lemales  lyinj;'  on  tin;  decks 
of  sealiu}^  vessels  which  were  nnue  than  1(H>  miles  from  the  Pribilof 
Islands,  l-'rom  this  fact,  and  from  the  further  fact  that  I  ha\es<'en  seals 
in  the  water  over  1~)0  miles  from  the  islands  durin.n'  the  suiuumm-,  1  am 
convinced  that  the  female,  alter  yivinj;'  birth  to  her  ycmny  on  the  rooker- 
ies, noes  at  least  l."»(>  miles,  in  many  i-asts,  from  the  islands  in  search  of 
food."  Robert  II.  .M<'.Manus,  ajournalist of  N'ictoiia,  who  had  devoted 
sonu^  attention  to  the  sealing  industry,  relerrin;4'  to  a  catch  of  seals 
in  Berinji'  Sea  when  he  was  ]U'esent,  says  that  over  three  fourths  of 
that  catch  were  c»)ws  in  milk.  This,  he  says,  at  a  <listance  of  LMM> 
miles  from  the  rookeries,  shows  that  the  nursin;n  cowsiamble  all  ovei' 
the  Deiinj;'  Sea  in  search  of  their  chief  food,  the  codfish,  though 
these  are  chielly  found  on  the  banks  ahuii;'  tluMMtast  of  the  Aleutian 
Islands.  In  the  Canadian  Fisheries  llepttrt  of  18811,  it  is  stated  that 
of  the  seals  taken  that  year,  "the  ureatest  number  were  killed  in 
Uerinj;-  Sea,  and  were  nearly  all  cows  or  female  seals;*'  an<l  in  the 
report  of  1888,  that  "over  (10  i)er  cent,  of  the  entire  catch  of  Bering 
Sea  is  made  up  of  female  seals."  The  record  is  full  of  similar  evidence. 
0.  Uiton  returninjf  from  her  search  for  Ibod  the  nudher  seal  hunts  up 
her  |)up,  and  will  refuse  her  milk  to  the  pupot  any  other  »'ow.  An  intelli- 
gent witness  thus  describes  the  f^eneral  hahits  of  the  mother  seal  and  ity 
pup:  "The  cows  ai>pear  to  goto  and  come  from  the  water  (piite  Ire- 
(piently,  and  usually  return  to  the  spot  or  its  ueiyhborhood,  where  they 
leave  their  pups  crying  out  for  them  and  recognizing  their  individuuJ 


116 


I* 

h' 


cries,  tlioiifjli  ten  tlionsand  around  sill  togetlier  should  bleat  at  once. 
They  quickly  single  out  tlicir  own  and  attend  tlicui.  It  would  be  a 
very  unfortunate  matter  if  the  mothers  could  not  identify  their  young 
by  sound,  since  their  puj)s  get  together  like  a  great  swarm  of  bees, 
spread  out  upon  the  grouiul  in  *  pods'  or  groups,  while  they  are  young 
and  not  very  large,  but  by  the  middle  and  end  of  September  until  they 
leave  in  November  they  cluster  together,  s!eei)ing  and  frolicking  by 
tens  of  thousands.  A  mother  comes  up  from  the  water  where  she  has 
been  to  wash,  and  perhaps  to  fee<l  for  the  last  day  or  two,  about  where 
she  thinks  her  pup  should  be,  but  misses  it,  and  finds  instead  a  swarm 
of  pups  in  which  it  has  been  incorjiorated,  owing  to  its  great  fondness  for 
society.  Tiie  mother,  without  at  first  entering  into  the  crowd  of  tluui- 
sands,  calls  out  Just  as  a  sheep  does  for  her  lambs,  listens,  and  out  of 
all  the  din  she — if  not  at  first,  at  the  end  of  a  few  trials — recognizes  the 
voice  of  her  ollspiing  and  then  advan(;es,  striking  out  right  .and  left, 
and  over  the  crowd  toward  the  position  from  which  it  replies;  but  if  the 
pup  at  this  time  hai:pens  to  be  asleej)  she  hears  nothing  from  it,  even 
tliough  it  were  close  by,  and  in  this  case  the  cow,  after  calling  for  a 
time  without  being  answered,  curls  herself  up  and  takes  a  nap,  or 
lazily  basks,  an<l  is  most  likely  more  successful  when  she  calls  again." 
Another  witness  of  large  experiiMice  siiys:  "As  already  stated,  the 
females  now  mostly  spend  their  time  in  the  water,  returning  on  shore 
oidy  to  suckle  their  young  as  they  re(piire  Ibod.  On  lamling  the 
mother  calls  «mt  to  her  young  with  a  plaintive  bleat  like  tiiat  of  a  sheej) 
calling  to  her  land).  As  she  approaches  the  mass  several  of  the  young 
ones  answer  and  start  to  meet  her,  resi»ondiiig  to  her  call  as  a  young 
lamb  answers  its  parent.  As  she  nu^'ts  them  she  looks  at  them,  touches 
them  with  her  nose  as  if  smelling  them,  and  passes  hurriedly  on  until 
she  meets  her  own,  which  she  at  once  recognizes.  After  <;ai'essing 
him  she  lies  down  ami  allows  him  to  suck  and  often  falls  into  a  sound 
sleep  very  (piickly  alter." 

If  the  mother  seal  is  killed  while  out  at  sea  in  search  of  fish  for  food, 
her  pup,  left  behind  on  the  islands,  an<l  rcipiiring  the  milk  of  its  mother 
for  eight  weeks  or  more  after  its  birth,  will  die  from  starvation.     This 

fact  is  placed  beyond  dis[mte  by  the  evidence,  and  is  not,  I  think, 
seriously  qnetjtioned. 

The  pups  do  not  take  to  swimming  naturally.    They  are  enticed  or 

forced  by  their  m()ther,  from  time  to  time,  into  the  water  and  taught 

to  swim.    If  a  pup,  by  accident,  is  born  in  the  sea,  it  will  immediately 


117 


sound 


sink  and  be  drowned.  As  already  stated,  tlic  rare  ia  both  eoneeived 
and  comes  into  existence  on  land,  and  from  the  necessities  of  its  physi- 
cal nature  must  abide  upon  land  during  several  months  of  tlie  year. 

7.  In  the  latter  part  of  September  or  early  in  October,  the  breeding 
season  having  closed,  the  pups  having  learned  to  swim,  and  the 
ice  around  the  islands  increasing  tlie  difliculty  of  going  into  the  sea 
for  ttsii  food,  the  herd  begins  to  leave  the  ishuHls,  in  Sipuids  or  bands 
of  different  sizes,  proceeding  in  a  scmtherly  and  southeasterly  direction 
through  the  mid<lle  i)as8es  of  the  Aleutian  Islands  into  the  North 
Pacitie  Ocean  south  of  those  islands,  where  they  get  into  the  warmer 
water  of  the  JaiKuiese  ciirrent.  During  the  winter  months  many  of 
the  se.als  are  seen  oil'  tiie  coasts  of  California  and  Oregon.  The  bulls 
do  not  go  so  far  s<mtli,  and  do  not  accomi>any  tlie  herd  in  its  general 
migrations,  usually  reuuiining  in  the  Gulf  of  Ahiska  Jintil  they  return 
to  the  breeding  grounds.  In  the  beginning  of  the  yciir  the  seals  turn 
their  Uu-qs  towards  tlu'ir  land  home,  moving  leisurely  in  small  schools 
or  bands,  but  substantially  as  a  herd,  northwardly  and  opposite  to  the 
coasts  of  Oregon,  Washington,  British  Uolumbia,  and  Alaska,  thence 
westwardly,  through  the  eastern  passes  of  the  Aleutian  Islands,  back 
into  Bering  Sea,  to  their  breeding  grounds  on  the  islands  of  St.  Paul 
and  St.  George.  They  occui)y  year  after  year  substantially  the  same 
places  on  the  islands. 

Their  general  migiation  nuite  each  year  from  the  Pribilof  Islands 
through  the  passes  of  the  Aleutian  Jslaiuls  into  the  Pacific  Ocean 
and  back  to  their  land  home  on  those  islands,  is  well  known  to  sealers 
and  navigators. 

8.  While  on  the  islands  they  are  subject  to  the  control,  for  every 
j)ractical  or  commercial  purpose,  of  those  who  are  there  by  the  authority 
or 'i"ense  of  the  United  States,  Credible  witnesses,  familiar  with  the 
habits  of  these  aninmls,  state  that  the  young  seals,  before  being  weaned, 
c<mld  be  easily  handled  and  branded  with  the  mark  of  the  United 
States.  So  complete  is  the  subjection  of  these  animals,  old  and  young, 
to  control,  while  on  the  islands  during  the  breeding  season,  that  such  of 
them  as  if.  mai/  be  (Jesirahle  to  talccfor  commercial  purposes,  can  be  readily 
separated  from  all  the  others.  Indeed,  if  pelagic;  sealing  continues  to  such 
an  extent  as  to  imperil  the  existence  of  the  race,  and  if  the  United 
States  should  lind  it  to  be  unprolitable  to  hold  the  islands  of  St.  P.aul 
and  St.  George  as  a  Government  lleservation,  to  be  used  exclusively 
by  these  animals  as  their  breeding  grounds,  it  could  take  substantially 


118 


i:;i 


MfeS 


tho  entire  herd,  in  any  one  brcedinjj  soivsoii,  and  put  the  proceeds  of 
the  Side  of  tlieir  skins  into  its  treasury. 

9.  Neitlier  in  Bering  Sea,  nor  in  the  North  Pacjific  Oeean,  does  the 
Pribilof  herd  intermingle,  to  any  ii]>preciable  extent,  with  the  herds  of 
northern  fur  seals  frequenting  the  islands  on  the  Asiatic  eoast.  The 
migration  routes  of  the  latter  are  altogether  in  the  waters  on  the  western 
sid<',  of  the  Pae-ifie  Ocean,  while  the  Pribilof  herd  never  have  gone  west 
of  the  one  h.indred  and  eightieth  degree  of  longitiule  from  Green- 
wich, and  very  few  have  ever  been  seen  so  far  west.  This  fsict  is 
conclusively  established  by  the  evidence,  and  is  recognized  in  the 
separate  rejxjrts  made  by  the  commissioners  who  were  appointed  by 
the  two  governments  (two  by  each  government)  to  investigate  and 
malve  n^port  upon  the  facts  having  relation  to  seal  life  and  the  meas- 
ures nccessiiry  for  its  proper  protection  and  i)reservation. 

The  Amciiican  Commissioners,  Profs.  Merriam  and  Mendenhall,  in 
their  sci»arate  report  made  under  the  authority  of  tin;  treaty  between 
the  two  governments,  say: 

"  The  fur  seals  of  the  Pribilof  Islands  do  not  mi.r  with  thofte  of  the 
Commander  and  Kiirilr  Tslands  at  tun/  time  of  the  i/ear.  In  summer 
tlu!  two  herds  riMnain  entirely  dintinet,  separated  by  a  water  interval 
of  several  hundred  miles;  an<l  in  their  winter  migrations  those  from 
the  Pribilof  Islands  follow  the  American  coast  in  a  southeasterly  direc- 
tion, while  those  fr()ni  tho  Conunander  and  Kurile  Islands  follow  the 
Siberian  and  Japan  coasts  in  a  southwesterly  direction,  the  two  herds 
being  s<»])arated  in  winter  by  a  water  interval  of  several  thousand 
miles.  This  regularity  in  the  nu)vcnients  of  the  different  herds  is  in 
obedience  to  the  well-known  law  that  migratory  animals  follow  definite 
routes  in  migration  and.  return  year  after  year  to  the  same  place  to  breed. 
Were  it  not  for  this  law  there  would  be  no  sucdi  thing  as  stability 
of  species,  for  interbreeding  and  (existence  uiuler  diverse  physiographic 
conditions  woiild  destroy  all  specific  characters."     U.   8.   Case,  333. 

The  P>ritish  Conunissioners,  Prof.  Dawson,  .and  Sir  George  Baden- 
Powell,  in  their  separate  report,  under  the  same  authority,  say: 

"llespccting  the  migration  range  of  the  fur  seals  which  resort  to 
Commander  Islands,  to  Pobben  Island,  and  in  smaller  numbers  to 
several  places  in  tho  Kurile  Islands,  as  more  fully  noted  in  subsequent 
])ages,  coujparatively  little  has  been  recorded;  but  the  result  of 
inqiiiries  nuide  in  vari<ms  directions,  \vhen  brought  together,  are  sufft- 
cieut  to  enablo  its  general  character  and  tho  area  which  it  covers  to 


119 


W3. 


be  outliiie«I.  The  deficiency  in  iiifoniiiition  for  tlie  Asiatic  cofist  depeiuls 
upon  the  fact  that  pelajjic  sealinjj,  as  understood  on  the  coast  of 
America,  is  there  practically  unknown,  wliile  tlie  people  inhabiting; 
the  coast  and  its  adjacent  islands  do  not,  like  the  Indians  and  Aleuts 
of  the  opposite  side  of  the  North  J'acilic,  naturally  venture  far  to  sea 
for  hunting  purposes.  The  facts  already  edited  in  connection  with  the 
migration  of  the  seals  on  the  east  si«le  of  tlu^  I'acifu;  show  that  these 
sinis  wils  enter  and  leave  liering  Sea  almost  entirely  by  the  eastern 
passes  through  the  Aleutian  chain,  and  that  only  under  exceptional 
circumstances,  and  under  stress  of  weather,  are  some  young  seals, 
while  on  their  way  south,  driven  as  far  to  the  west  as  Atka  Island. 
No  large  bodies  t)r  migrating  seals  are  known  to  pass  near  Attn  Island, 
the  westernmost  of  the  Aleutians,  and  no  yoiinji  smls  have  ever  inthin 
mrmorjf  been  neen  there.  These  circumstances,  with  others  which  it 
is  not  lUM'cssary  to  detail  here,  are  suOicient  to  demonstrate  that  the 
main  migration  routen  of  the  seals  frajuentinij  the  Covimnnihr  Islands 
do  not  toneh  the  Aleutian  ehahi,  and  there  is  every  reason  to  believe 
that  although  the  seals  become  more  or  less<'ommingled  in  MeringSea, 
during  the  summer,  the  mUjration  routes  of  Jie  two  sides  of  the  North 
raeifie  arc  essentiallif  distinrt.  The  incpiiries  and  observations  now 
ma<le,  however,  enable  it  to  be  shown  that  the  fur  seals  of  the  two 
sides  of  the  North  I'acifu',  Ix'long  in  the  main  to  ])raetirally  distinct 
niiijration  traefs,  both  of  which  are  elsewhere  traced  out  an<l  described, 
and  it  is  believed  that  while  to  a  certain  extent  transfers  of  individual 
seals  or  of  snnill  grou])s  occur,  i)robably  ever  year,  between  the 
Pribilof  and  Commander  tribes,  that  this  is  exceptional  rathei-  than 
normal.  It  is  not  believed  that  any  voluntary  or  systematie  movement 
of  fur  seals  tahes  place  from  one  yroup  of  breed  iny  islands  to  the  other, 
but  it  is  probable  thatacontinual  harassingof  the  seals  upon  one  group 
might  resuli,,  in  a  course  of  years,  in  a  corresi>onding  gradual  accession 
to  the  other  group. 

"There  is  no  evidence  whatever  to  show  that  any  consi<lerable  branch 
of  the  seal  tribe  which  has  its  winter  iionie  off  the  (u»,'ist  of  IJritish 
Colund)ia  resorts  in  summer  to  tiie  Commander  Islands,  whether  vol- 
untarily or  led  thither  in  pursuit  of  food  fishes;  and  imiuiries  along  the 
Aleutian  chain  show  thsit  no  regular  migration  route  follows  its  direc- 
tion, whether  to  the  north  or  south  of  the  islands.  It  is  certain  that 
the  young  seal«,  in  going  southward  from  the  Pribilof  Islands,  only 
rarely  get  drifted  westward  as  far  as  the  one  hundred  and  seventy- 


$ 


120 

Hocond  iiiorldiiui  of  west  lon^jitiulo,  wliilo  Attn  Tsliiiul,  on  (lio  one  linn- 
dred  and  scivuiity-tliird  nuM-idiiiii  east  is  never  visited  by  yoiiii{j  seals, 
siiid  therefore  lies  between  the  rey,iiliir  aiitiunn  nii,nriilion  routes  of  the 
seids  {^oinjjf  from  the  I'ribilof  and  Coniiuiiudor  Islands  respeetively." 
IS'ecs.  1!f7,  l!)8,  '153,  /,;/. 

10.  Tiie  herd  habitnally  resorting  to  the  islands  of  St.  Paul  iind 
St.  (Jeorf^e  is  the  same  that  1ms  resorted  there  in  the  sprinjjf, 
summer,  and  fall  of  every  year  for  the  ])a8t  centuiy  iind  more 
without  any  ehanjje  whatever  in  their  habits  or  in  their  migra- 
tion routes.  Sinee  the  <liscovery  of  the  islands,  the  seals  freiiuenting 
them  have  never  resorted,  for  any  i)nrpose  whatever,  to  other  eoasts 
or  lands.  This,  no  doubt,  is  due  to  the  faet  that  they  find  on 
the  l*ribih>f  Islands,  and  nowhere  else,  the  'solution  lequired  for  the 
breeding  season,  as  well  as  the  elimatie,  and  physical  eonditions 
necessary  to  their  life  wants,  among  which  eon<litions  aiean  uniformly 
low  tem|»erature  and  an  overcast  sky  ami  foggy  atmosphere  that  s«'rves 
to  protect  them  against  the  sun's  rays  while  they  remain  at  the 
rookeries  during  the  long  sumnu'r  season.  Whatever  may  be  the 
reason  lor  their  nevei-  having  landed  njion  any  other  shores,  it  is 
indisputably  shown  that  they  have  regularly  resorted  to  those  islands 
as  their  breeding  grounds  for  a  period  so  long  that  the  menu)ry  of  man 
runnetli  not  to  the  contrary.    And  tlie  contrary  is  not  asserted. 

11.  Prior  to  1883  or  18S5  the  talcing  of  these  fur  seals  at  sea  was 
exclusively  by  Indians  or  natives  inside  territorial  waters,  at  any  rate, 
([uit(5  near  the  coasts.  They  employed  for  that  pur|)ose  only  suudi 
canoes  an<l  harporms  or  spears.  Tiieir  catch,  however,  has  never  been 
large  in  any  year,  and  has  not  materially  allected  the  industry  con- 
ducted at  tlu'  islands  of  St.  Paul  and  St.  George,  nor  apparently 
diminislu'd  th(>,  number  of  the  herd. 

Uut  in  l.SS.'i  a  schooiuM-  manu<!d  by  hunters  skilled  in  taking 
seals  entere<l  llering  Sea.  and  returned  with  more  than  2,000  seals. 
Tiiis  stimulated  the  business  of  taking  tliese  animals  in  the  open  waters 
beyond  the  territorial  Jurisdiction  of  the  respective  governments. 
In  188")  tirearn.s  were  lirst  used  in  hunting  simvIs.  Largo  schooners 
or  vessels  now  gv)  out  into  the  ocean  in  the  route  traversed  by  the 
seals  and  send  out  small  boats  manned  by  hunters  with  ritles  or 
uhotguns.  Onlinarily,  only  the  head  of  the  seal  can  be  seen  as  it 
moves  through,  or  lies  sisleep,  in  the  water;  those  thus  asleep  being, 
jis  a  general  rule,  uu)ther  seals  heavy  Avith  young,  who,  being  dia- 


121 


liiking 

seals. 

lateis 

hcnts. 

loners 

^y  the 

|es  or 

aa  it 

|)einj?, 

dia- 


ablod  by  tlieir  condition  from  makin;;  rapid  movcnients,  are  easily 
approaciied  iiiid  ivilled.  It  is  indisputably  sli  own  by  the  evidence  tha 
at  least  7")  piM*  cent  of  all  s(  als  shot  by  pelii;;ic  sealers  and  actually 
secured  are  fennile  seals,  the  larfj^er  part  of  whom  are  far  advanced 
in  pregnancy  wiien  so  taken.  As  soon  as  the  mother  seal  is  taken 
by  i)ehiyi«!  seah'rs,  h«r  body  is  opened  and  the  unb«irn  pup  tlirown 
into  the  sen.  It  is  also  shown  that  hirgc  nnn>l)ers  of  seals,  that 
iire  shot  at  and  wounded  or  Jvilled,  siidv  and  are  entirely  lost  before 
tiie  hunter  can  reach  them  with  his  smnll  boat.  Tlie  nnndier  so  lost 
varies  according  to  the  sliill  of  the  hunter  in  using  lire  arms  and  tlie 
injpk'ments  carried  for  the  iHiri)Ose  of  securing  the  seal  tlsat  has  been 
wounded  or  killed,  belVu'e  it  sink-s.  Uut,  making  a  fair  aveiage  of  the 
pel-  cent  given  by  witnesses  on  both  sid«'s,  it  is  certain  that,  in  addi* 
tion  to  tlu^  seals  acitually  taken  by  hunters  using  (ire  arms,  not  less 
than  2")  to  H)  ]>ei'  cent  of  all  seals  w()unded  sink  before  they  are 
reached  by  the  hnnter,  and  are  entirely  lost.  Tn  pdaffic  Healing 
there  can  he  no  scleetire  killiu^  no  far  an  .'ic.r  is  voiwenietl,  for  it  is  offrecd 
hat  rt  hunter  can  not  tell  whether  the  seal  at  irhieh  he  shoots  in  the 
water  is  of  the  male  or  female  sex.  Such  an  atta<!k  upon  the  breeding 
females,  if  continued  for  a  few  years,  will,  of  coarse,  resnlt  in  the  ex- 
termination of  this  polygainons  race.  The  slaughter  of  the  female  sejil 
not  only  involves  the  loss  of  the  mother  and  its  unborn  pup,  bnt,  as 
Mr.  Blaine  well  said,  "the  future  loss  of  the  whole  nnmber  which  the 
bearing  seal  may  produce  in  the  snccessive  years  of  life.  The  destruc- 
tion which  results  from  killing  seals  in  the  <.pen  sea  pro(;eeds,  therefore, 
by  a  ratio  which  constantly  and  rai)idly  increases,  and  insures  the 
total  extermination  of  the  species  within  a  very  brief  period."  Besides, 
in  the  long  run,  the  killing  of  a  female  which  has  not  yet  borne  young, 
or  which  is  too  young  to  have  borne  many  pnps,  is  more  destructive 
than  to  kill  one  somewhat  advanced  in  years. 

The  largest  number  of  vessels  engaged  in  hunting  these  fur  seals  on 
the  high  seas  outside  of  territorial  waters  in  any  year  previous  to 
ISSG  was  10.  The  number  increased  in  lSS(i  to  34,  in  18S7  to  47,  in  3889 
to  (JS,  in  1890  to  91,  in  1891  to  lir>,  in  1892  to  122.  The  catch, 
in  the  open  sea  by  pelagic  hunters  of  seals  belonging  to  the 
Pribilof  herd  has  st«'adily  increased  for  ten  years  past,  so  that 
in  the  North  I'acitic  Ocean,  south  of  the  Aleatian  Islands,  it 
amounted  to  G8,U0U  iu  1891  and  at  least  70,090  iu  1892,  the  modus 


;i'i 


iili 


!!i 


lite 


122 

rirendi  for  those  years  excliuliun  [M^lajfie  sealers  only  from  Bering 
Soa. 

During  the  breeding  season  of  18(!S,  before  tlio  Uniti^l  Statxis  had 
established  regulations  (or  the  taking  of  fur  seals  at  the  I'ribilof 
Islands,  and  before  its  authorities  ha<l  a(-({uired  any  knowledge,  as  to 
the  iMMtessity  of  imposing  restrietions  upon  the  number  to  be.  killed  for 
(MMumereial  purposes,  seal  hunters  took  on  those  islands  ainne  about 
2()S,(>l)()i)f  all  ages  and  sexes.  TIum'vII  was.  of  course,  rennidied  as  soon 
as  the  act  of  lH(iS  was  passed.  Kroiu  I.S(H>  to  1871,  in«',lusive,  the  aver- 
age number  kille,d  annually  on  the  islands  for  eommereial  purposes 
(taking  for  this  estimate  the  report  of  the  Ibitish  eommissioners)  was 
<J!>,L''"»8,  and  from  1872  to  1SS!>,  inclusive,  !>S,lill,  exclusive,  in  e  M;h 
period,  of  the  pups  killed  by  natives  for  food  and  raiujent.  In  181>(>, 
when  the  disastrous  elfccts  of  pelagic  scaling  began  tobemorc  dislinclly 
felt,  only  20,!M)r»  young  males  snitabh^  for  taking  eoidd  be  found  on  the 
islands,  and  in  181)1  only  12,071,  including  the  7,r»<M>  allowed  by  the 
moduH  rh'v.mli  of  thai  year.  Jly  tlie  iiioiIun  rirtii<li  oH  18!)2  oidy  7,r)0(> 
were  allowed  to  be  taken  on  the  islands.  In  the  piesent  year,  under  the 
operation  of  the  latter  arniiigemcnt,  only  7,r)()()  ciin  betaken  by  the 
United  vStates  or  its  licensees  on  the  islands,  while  |>elagie  sealers  are 
at  liberty  to  take  all  they  can  in  the  North  l'a(Mll<',  Ocean.  It  is  not 
<loidited  that  they  will  takciit  least  8(),00()  this  season  in  those  waters. 

12.  The  CommissioiH'rs  a,pi>ointed  by  the  United  States  and  (Ireat 
Britain  agree  that  "since  the  Alaska  ))nrchase  a  marked  diminution  of 
the  seals  on,  ami  habitually  resorting  to,  the  I'ribilof  Islands,  has 
taken  place;  that  it  has  been  cunuilative  in  effect,  and  that  it  is  the 
result  of  excessive  killing  by  nnin."  They  also  agree  that  "for  indus- 
trial as  well  as  for  other  obvious  reasons,  it  is  incumbent  upon  all 
nations,  and  particularly  those  having  direct  commercial  interests  in 
fur  seals,  U)  ])rovide  tor  their  jjroper  protection  and  preservation." 

l.'i.  But  for  the  protection  given  to  these  seals  while  on  the  islands  of 
St.  Taul  and  St.deorge,  first  by  Russia,  and,  subsequently,  by  the  United 
States,  the  entire  herd,  frequenting  the  Islands  of  St.  Paul  and  St. 
George  since  the  discovery  of  those  islands  (how  nuich  longer  can  not  be 
now  known),  would  long  ago  have  been  destroyed  by  raiders  and  seal 
hunters.  If  the  care,  supervision,  and  self-<lenial  practi(M;d  by  the 
United  Slates  on  the  islands  were  withdrawn,  the  race  would  be  swept 
'out  of  existence  within  a  very  few  years. 

It  is  conunon  know  ledge  that;  at  the  close  of  the  last  century  fur  seals 


123 


Boring 


of  a  Roiuowliiit  «lin«'r(Mit  simmmc.h  honi  tlic  iSortlioni  Fur  Bonis,  but 
Iiaviii;;  most  of  th«  saino  <'li}iriict«Misti<'s,  could  \w  Keen  in  nuinlKMs 
iilinost  incr<Mlil)lc  on  niiiix'roiis  tMiasts  and  islands  in  t\w  Southern 
OceMU,  oft"  tlu^  coasts  of  South  Ampiiiia.  Accordin{^  to  the  concur- 
rent tosthnony  of  niivipitors  and  iiiituralists,  all  these,  lierds  in  tln> 
Houthern  seas  hiive  been  annihiliited,  or  so  nnluced  in  nnnihers  that  it 
is  no  lonjjfer  worth  while  to  visit  them,  "owin;;,"  to  use  the-  lan;;iiii;;e  of 
Sir  Williiiin  II.  !"'lower,  the  distinf,Miished  head  of  the  r»ritisli  Natural 
History  Mnseuiii.  "to  the  rullih^ss  iind  illdiseriminat<^  slau;;hter  curried 
on  by  ijjnoriint  mid  hiwh'ss  sealers,  re<;iji'dlessof  everythiu};  l>ut  imme- 
diiite  i)roflt."  We  have  the  authority  <d"  the  sanu",  eminent  naturalist 
for  siiyinj;:  ''The  oidy  spot  in  the  world  wliere  the  fur  seals  are  now 
found  in  their  ori<;inal,(>r  even  in<'reased,  numbers,  is  the  I*ril>iIof  ;;roni>, 
a  circumstance  entirely  owinj;  to  the,  ri«,nd  (Mifon'.ement  of  the  wise  re;;- 
ulations  of  the  Alaska  ('ommercial  Company.  Ibit  for  this  the  fur  seal 
before  now  would  have  been  arbled  t^)  the  Ion;;  list  of  animals  extermi- 
nated from  the  earth  by  the  hand  of  man."  Fi/ti/-.srcon(l  Coii(;ren8 
United  States,  Firxt  sestiion,  Senate  Ex.  Jhte.  No.  .^.-T,  pp,  !Jfi-!>7. 

Dr.  Philip  liUtley  Sclater,  of  the  Zoiilo^'ical  Society  of  Lonilon,  in  a 
re(!ent  arti«'h>.  to  which  our  attention  has  l)e«Mi  called,  says,  substantially 
in  conformity  with  tli  -vidence  before  us:  "  In  formcM- days  South  Africa, 
Aiisti-alia,  and  Soutli  America  all  supplied  .seal  skins  for  the  market, 
derived  either  from  tlu^  shores  of  the  continents  themselves,  or  from  the 
adjoinin;''  islands,  to  which  the  fur  seals  resorted  lor  the  purpose  of 
breeding:  and  brin!i;in};'  up  their  younj^j.  IJut  the  Antarctic  fur.seal  trade 
is  now  pracitically  extinct,  owin;;  to  tiie  indiscriminate  slaughter  of  these 
animals,  which  eommence<l  at  the  end  of  the  last  century  and  was  con- 
tinued until  the  i-eduction  in  their  nund)ersr(Midered  the  trade  altogether 
unprotitable.  In  a  sinj^le  year,  it  is  said  that  ,'iO(>,0()0  seal  skins  were 
taken  from  the  S(»uth  Slietlaiid  Islands,  and  upward  of  ;},()00,0(M)  are 
stated  to  have  been  carried  off  from  tlub  island  of  Mas-a-fuero,  near 
Juan  Fernand(^/,  in  the  short  space  of  si'ven  years.  In  fact,  tin*  breed- 
ing places,  or  rookeries,  as  they  are  called,  of  the  fur  sefils  in  the  Ant- 
arctic seas  have  been  entirely  destroyed.  The  myriads  of  seals  winch 
formerly  resorted  to  tlu^m  have  been  either  swept  away  or  reduced  to 
a  few  individuals,  which  seek  the  land  in  scattered  bands  and  i  i  to 
the  sea  on  the  a]>proach  of  man.  There  can  be  little  question,  we  see, 
of  the  fate  that  will  overtake  the.se  animals  in  other  parts  of  the  world 
unless  eftective  measures  are  instituted  for  their  j)rotection.   Although, 


I 

1 


121 

tliorofore,  a  fow  lots  of  soal  skiiiH  iiiiiv  wMII  bo  rorcivod  from  tlio  8outh 
SouH,  tlio  fiirsptil  of  the  N^orfh  I'jicilli!  {Otaria  urnin(i)  i«,  in  furt,  tho 
only  soiir.M^  of  tin;  pn-.mMit  supply  of  fur  s«al  skins  that  <'an  b»^  rrlied 
upon.  At  th(i  pros«Mit«'pf)('lH)nly  two  ronjiiinin}:[hre(!(linvf  phiccsof  lihis 
animal  exist.  Tliesu  are  in  I'rihilof  islands  or  Merino  Sea,  within  the 
territory  of  Alaska  (ecded  by  Russia  to  the  United  States  in  ISIIT)  and 
the  ('oMiniaiKler  Islands  in  the  southwest  (M>riMU'  of  the  sauie  sea,  which 
Hhll  I'einain  under  Itussian  Jurisdi<;tion.  Two  <;reat  herds  of  fur  seals 
resiH't  to  tlu'se  islands  rt'spectively  dnriny:  the  Hunimer  mouths  iov  the 
purpose  of  breedin;^'  an<l  rearin;^  their  younfj." 

Again  the  sann^  scientist:  "If  there  were  no  otiier  reasons  to  the 
eontriiry  it  would  be  quit*'  as  fair  that  the  pelasie  sealers  should  eateli 
sixty  thousand  seals  in  the  oixmi  ['a(;ilie,  as  that  the  Amerl(-an  olVurials 
should  slaughter  the  same  nulnbl^r  on  tln^  1*  ribilof  Islands.  Hut,  in  the 
fornmr  Mso  there  in,  of  entime^  no  pDHsihiVitji  of  nialciiiff  a  .selection  of  atfe 
or  se.v.  The  jH'hiffic  hunter  IcUIh  enerif  seal  lie  ean  come  across,  irhether 
male,  feimile,  or  !f(»nn(f.  A<;cording  to  the  Ameri(!an  (/onnnissioners, 
at  least  .S(>  per  cent  of  the  seals  thus  taken  are  females.  Worse  lan 
this,  according  to  the  same  authorities,  tln^y  ant  prin<!ipally  fc  iles 
heavy  witli  young.  Thus,  fov  every  seal  of  this  kind  taken,  two  lives 
are  sacrillc(Ml.  Monsover,  as  the  seal,  if  shot  dead,  sinks  (piickly  below 
the  surface,  many  of  the  bodies  uro,  altogether  lost,  and  another  con- 
siderable elemcMit  of  wastefulness  is  thus  attacihed  to  pelagic  sealing. 
Now,  let  me  ask,  what  owner  of  a  deer  forest  in  Scotland  would  consent 
to  his  hinds  being  killed,  especially  during  the  breeding  season  ?  Is  it 
not  likewise  on  a  grouse  njoor  forbidden  to  shoot  gi'cy  hens  at  any 
time?  In  these,  and  in  numerous  other  instain-es  which  might  be  men- 
tioned, the  sanctity  of  female  life  is  universally  recognized.  On  the 
other  hand,  the  fur  seal  being  polygamous,  mtdes  may  be  killed  to  a 
large  extent  without  fcci^  of  injury  to  the  herd,  for,  altluMigh  nearly 
equal  numbers  of  both  s  xes  appear  to  be  born,  one  adult  male  is  suffi- 
cient for  twenty  or  thi  r  females.  But  the  selection  of  males  from 
females,  and  especially  males  of  the  age  re<piire(l  to  make  the  best 
skins,  can  only  he  effected  n  land,  M'here  the  assembling  together  ol  the 
young«tr  nmle  fur  seals  .n  particular  spots  presents  the  necessary 
op]»ortunity.  I  think,  tiierefore,  ^/»rtf  if  the  fur  seal  is  to  be  presented 
for  the  use  of  posterity  every  true  imturalist  will  agree  with  the  Amer- 
ican Commissioners  that  pelagic  sealiny  ouyht  to  he  altoycther  sup- 
pressed— iu  the  lirst  i)lace,  because  it  necessarily  involves  the  de- 


125 


le  (le- 


Htriictiun  of  IVmiiU;  lil'ii;  and  in  tlio  st'cond  pliicc,  bci-anse  of  its  wnste- 
fiiliu'ss  tliroii;^li    Mat   liviincKt    liiiltu'u  to   ncov'tn*  seals  shot  at  sea. 

•  •  •  TIm!  fur  seal  of  Alaska  (pia«'ti<*all.v  now  th«  only  iTniaininj; 
nii.'Mil)er  of  th«  j{i'onp  of  fur  seals)  should  bo  (leclarod  to  be,  to  all 
intents  an<l  |>ui'|(oses,  a  (loMiesti<;  animal,  and  its  c  ipture  absolutely 
pi'oliibited  c.\e<'|it  in  its  home,  on  the  Piiliilof  Islands/'  Xinitcc,iu\ 
Centidi/,  June,  /n.'AV,  p.  lO-iS. 

!Sir  (leorj^e  Badt'u-I'owi'll,  one  of  the  British  Commissioners,  piib- 
liely  d(;clared  before  his  appointiueut  as  a  fouiiuissiouer,  that  ^'as  » 
matter  of  faet,  the  Canadian  sealers  take  very  few,  if  any,  seals  close  to 
these  (the  l*ribilof)  islands.  The  main  (!atch  is  made  far  out  at  sea, 
and  u  alinoHt  cntirchf  voinposctl  of  fcmaU-n.^^ 

Dr.  A.  Milne  Kdwards,  direetor  of  the  Museum  of  Natural  History  at 
Paris,  alluding  to  the  fur  seals  truiuentinj;  Bering  !Sea,  says: 

"  What  has  happened  in  the  St)uthern  Ocean  may  serv«^  as  a  warning 
to  us.  Less  than  a  century  ago  these  amphibia  [fur  seals]  existed  there 
in  countless  herds.  In  1808,  when  I''anning  visited  the  ishnuls  of 
South  (li'orgia,  oi.e  sliip  left  those  sliores  carrying  away  Ji,000  seal- 
skins belonging  to  tlie  si)ecies  ArvUu-cpltaliis  Ausfralis.  lie  himselt 
obtained  r)7,(l(K)  of  them  and  he  estimated  at  llL',000  the  nund)er  of 
these  .iiimals  killed  during  the  few  weeks  the  sailors  sj)ent  there  that 
year.  In  ISUU  Weddel  visited  the  islands  and  he  estimated  at  1  ,li()(),0()0 
the  nundtei  of  skins  obtained  in  that  locality.  The  same  year  320,000 
fur  seals  were  killed  in  the  South  Shetlands.  The  inevitable  conse- 
([uences  of  this  slaughter  were  a  rapid  decrease  in  the  number  of  these 
animals.  So,  in  spite  of  the  measures  of  protection  taken  during  the 
last  few  years  by  the  goveriu)r  of  the  Falkland  Islands,  the  seals  are 
still  very  rare,  and  the  naturalists  of  tlie  French  expedition  of  the 
Itomancha  remained  for  nearly  a  year  at  Terra  <lel  Fuego  and  the 
Falkland  Islaiuls  without  being  able  to  cateh  a  single  specimen.  It  is 
a  source  of  wealth  which  is  now  exhausted.  It  will  be  thus  with  the 
(Jallorhi)mH  vrmnus  in  the  North  I'acilic  Ocean,  and  it  is  time  to  insure 
to  these  animals  a  security  which  may  alloN>  them  regular  reproduction. 
I  have  followed  with  much  attention  the  investigations  which  have 
been  made  by  the  Government  of  the  United  States  on  this  subject. 
The  reports  of  the  Commissioners  sent  to  the  Pribilof  Islands  have 
made  known  to  naturalists  a  very  large  number  of  facts  of  great 
scientific  interest,  and  have  demonstrated  that  a  regulated  system  of 
killing  may  be  safely  applied  in  tlie  case  of  thei>e  herds  of  seals  when 


w 


It  ' 


126 

there  is  a  suporflnity  of  iimlcs.     Wliat  inif^lit  he  ciilled  a  tax  on  ccli 
ba<;y  was  a|H)lic'(l  in  tliis  May  in  llic  most  satislii(;lory  iiiinuu'r,  and  tin! 
indrlinitc.  preservation  of  the  species  wonhl  have  been  ussured  if  t lie 
cmiyrmitN,  on   their   way  back   to   their  hreeiViwj  places,  had   not   been 
attacled  and  purs Kcd  in  every  ivai/.'"     U.  H.  Case,  Vol.  ],  App.  il'J. 

The  record  eontains  the  opinions  of  otliei'  scientific  j;entleinen  of  lii<;h 
repute,  in  answer  to  written  in([niiies  on  this  subject  made  by  l*r«il". 
Merriani,  of  the  United  States  l)ei>iirtnient  of  Agriculture,  and  based 
uiMtn  a  full  and  accurate  account  of  seal  life. 

Dr.  Nelirin}4,  l*rolessor  of  Zoolofjy  in  the  Uoyal  Afjfricnltural  Collej^e 
of  Uerlin:  "1  am  like  yourself  of  the  o|)inion  that  the  reniarUable 
decrease  of  lur  seals  on  the  rookeries  of  thi;  rribilof  Islands  which  has, 
of  late  years,  become  more  and  more  evident,  is  to  be  attributed  mainly, 
or  i)erliaps  exclusively,  to  the  unreasonable  destruction  caused  by  the 
seal  hunteis  who  ply  oheir  avocation  in  the(»pen  sea.  Tlie only  rational 
method  of  takinj?  the  fur  seal,  and  the  only  one  that  is  not  likely  to 
result  in  the  extermination  of  this  valuable  animal,  is  the  one  which 
has  hitlKU'to  been  employed  on  the  Tribilof  Islands  under  the  super- 
vision of  the  (Jovernnient."     U.  IS.  Case,  Vol.  J,  Ajtp.  i:JO. 

Prof.  Salvadoii,  of  the  Musco  Zoolo^ic**,  Turin,  Italy:  "No  doubt 
free  i>elaj;ie  sealiu};'  is  a  cansi'  wliicli  will  a(;t  to  the  destiiu^tion  of  the 
seal  herds,  and  to  that  a  stop  must  be  put  as  soon  as  possible."  U.  IS. 
Case,  Vol.  I,  App.  t:.>LK 

Prof.  Von  iSchrenck,  of  the  Imperial  Academy  of  Sciences,  St. 
Petersburg:  "J  am  also  persuaded  that  })elaj;ie  sealing,  it  pursued  in 
the  same  manner  in  fulu'c,  will  necessarily  end  with  thi^externdnation 
of  the  fur  seal."     U.  IS.  Case,  Vol.  J,  App.  i:2:>. 

Prof  (5i<>lioli,  diicctoi'  of  the  Zoological  Museum,  Jvoyal  Sujx'rior 
Institute,  Florence,  Italy:  '*  In  any  case,  all  who  aie  competent  in  tiie 
matter  will  adniit  that  no  method  of  ca[»lure  could  be  moie  uselessly 
desti'in-tive  in  the  case  of  IMnnipedia  than  that  called  pelaj^ic  sealinj;'; 
not  only  any  kind  of  selection  of  the  victims  is  im[>(»ssible,  but  it  is 
adinittin,!;-  much  to  assert  (liat  out  of  three  destroyed  one  is  secured  and 
utilized,  and.  this  lor  obvious  and  wi'll-known  reasons.  In  the  case 
of  the  North  I'acilic  fur-seah  this  mode  of  capture  and  destruction 
i^}  doubly  to  l)e  condemned,  be-ause  the  destruction  falls  nearly  exclu- 
sively on  those,  the  nursinj;-  ami  i)re,niniiit  females,  which  ouj^ht  on  no 
account  to  1,1  killed.  *  *  *  1  (juite  ii^^ree  with  you  in  nmintainin<,' 
that  unless  the  malpractice  of  pelagic  sealing  be  prevented  or  greatly 


•iilli'd  ii  tax  oil  caA'v 
)i-y  iiiaiiiKT,  and  tlio 
been  assured  if  t/ic 
laces,  had  not  been 
>l.  ],  App.  U'J. 
c  j^ciitlciiicn  of  liiji'h 
jjec.t  made  by  J'luf. 
icultuio,  and  based 

kffrieultural  Collej;e 
at  tlie  it'iiiaikable 
'  Islands  w  hieli  lias, 
;',  attiibuted  mainly, 
;tion  cauHt'd  by  tlic 
.  The  only  rational 
lat  is  not  b'kely  fo 
!,  is  tlie  one  wliieli 
s  under  the  siiper- 

,  Italy:  "No  d(.ubt 

destruction  ol'  tlie 

IS  possible."     U.  >S. 

y  of  Sciences,  St. 
aliii^-,  if  pursued  in 
1  tlu;  extermination 

111,  Koyal  Su])crior 
e  competent  in  tiie 

be  more  uselessly 
cd  p('laj;ic  sealiii;^'; 
l>ossible,  but  it  is 

oiui  is  secured  and 
■ions.    Ill  the  case 

e  and  destruction 

falls  nearly  exclu- 
wliicli  ouji'ht  on  no 
oil  ill  maintaining' 
L'veiite<l  or  greatly 


127 

cheeked,  both  in  the  Xortli  I'aciiic  and  in  tlie  Bcriii};  Sea,  the  eeo- 
numic  extermination  of  Viillurhiinis  iirNinus  ii;  lutrvlij  (he  mailer  of  a 
few  i/eavN.^^     U.  *S'.  CVj.st,   Vol.  I,  App.  1^3. 

Prof.  Bl;  -ichard,  of  the  Medical  Faculty  of  Paris,  and  };eneral  sec- 
retary of  the  Zoolojii(;al  Society  of  Franeci:  "  IJy  reason  of  the  mas- 
sacres of  which  it  is  the  vi<^tiin,  this  species  is  advancinj;'  rapidly  to  its 
total  and  final  destruction,  followinj?  the  fatal  road  on  wliich  tha  liliy- 
Una  iStcllen,  the  Monatchm  trophh-alis,  and  the  .Uacrorhinus  anfpi.stiros- 
trix  ha\e  preceded  it,  to  cite  only  the  jjreat  mainiuifers  which  but 
r<'cently  abounded  in  the  American  seas.  Now,  the  irremediable 
destruction  of  an  eminently  useful  animal  species,  such  as  this  one,  is, 
to  speak  }iluiiily,  a  crime  o¥  which  we  are  rendering  ourselves  yuilty 
towards  our  descendants.  To  satisfy  our  instincts  of  cupidity  we  vol- 
untarily exhaust,  and  that  forever,  a  source  of  wealth,  which  properly 
rej;ulated,  ought,  on  the  contrary,  to  (contribute  to  the  prosperity  of 
our  own  generation  and  of  those  which  will  succeed  it.  *  *  *  With 
bis  harpoons,  his  llrearms,  ami  his  inacliines  of  every  kind,  man  with 
whom  the  instinct  <»l  «lestructioii  attains  its  highest  jtoiiit,  is  the  worst 
enemy  of  nature  and  of  inankind  itself.  Ilapjuly,  while  yet  in  tiine^ 
the  savants  sound  tlu^  alariii.  In  this  century,  when  we  believe  in 
s<'ience,  we  iiiiisl  hope  that  their  voit-e  will  ii<»t  be  lost  in  the  desi'it," 

Profs.  Lilljclxug  and  Nordeiiskiold,  of  the  Academy  of  Sciences, 
Sweden  llllit\^  in  deitlaring:  "As  to  the  Ibrmer  (piesli(Ui,  the  killing  <(f 
the  seals  on  the  rookeries,  it  seems  at  present  regulated  in  a  suita- 
ble manner  to  elfectually  prevent  the  gradual  diminishing  of  the  stock. 
Ifa  wider  ex])erienceshoul<l  require  some  iiKMlilications  in  these  r«'gula- 
tions,  there  is  no  danger  but  that  such  modifications  will  be  adopted.  It 
isevidently  in  the  interest  of  the  owners  of  the  rookeric'sto  take  care  that 
this  source  of  wealth  shall  not  be  lessened  by  excessive  exploitation. 
^ov  will  tlierc!  lie  any  dillieiilty  for  studying  tlie  conditions  of  health  and 
thriving  of  tlu^  animals  dining  tli(>  rookery  season.  As  to  pelagic 
sealing,  it  is  evident  that  a  systematic  hunting  of  the  seals  in  the  oiieii 
sea  on  tlu^  way  to  and  I'roiii  or  around  the  rookeries,  will  very  soon 
cause  the  complete  extinction  of  this  valuable,  and,  from  a  scientific 
l)oint  <)f  view,  so  extremely  iiit«'iesting  and  imiiortant  animal,  es[)e- 
cially  as  a  great  number  of  the  animals  killed  in  this  manner  arei)rcg- 
nant  cows,  or  cows  temporarily  sejiarated  from  their  pups  while  seek- 
ing food  ill  the  vicinity  of  the  rookery.  Everyone  liaving  some  expe- 
I'ieuce  in  seal  Imiitiiiy;  can  also  attest  that  only  a  relatively  small  part 


a 


Ff^ 


128 


of  the  seals  killed  or  seriously  wonnded  in  the  open  sea  ean  in  this 
inaiiuer  be  canj^ht.  We  are  (herefovc.  iteisiiudcd  that  a  jnohlhition  of 
pfldflic  scdliiHi  IK  a  imrssttfj/  coudition  for  llie  pnrcufion  of  the  (olal 
cvtcriH illation  of  llic/ur  Ncal.'"     U.  S.  ('(tsi',Vol,  7,  .'l2>/>.  /-'^'. 

I'rof.  Middeiidoi-r,  an  eminent  scientist  (»('  Russia:  "Tlu^  method  of 
treatinjn'  tiiese  animals  which  was  oii;;inally  ad(»jtted  hy  (iic^  l.'nssiiin- 
American  (!om[»any  at  their  iiome  on  the  I'liitilof  Islands  is  still  con- 
tinned  in  the  sanu'  rational  manner,  and  has,  for  more  than  half  a  cen- 
tury, be«'n  found  to  be  (excellent,  both  on  account  of  the  larj^'e  nnnd)er 
of  seals  taken  and  because  they  are  not  exterminated.  So  lonj;'  as  snper- 
tlin»ns  yonnj;'  nmles  arc  killed,  iu)t  only  tlie  exist»'iice  but  even  the 
iiu'rease  (d'the  hei'd  is  assured."     //.  S.  Ciinc,  Vol.  /,  App.l:iO. 

Prof.  Ilolub,  of  l'ra.nne,  Anslria-llunj^aiy :  "If  the  pehifiic^  sealin;*' 
of  the  fur  seal  is  cariied  on  still  lonj;er,  as  it  has  been  executed  dur- 
\i\<X  the  last  years,  the  itela,s;ic  sealin;^'  as  a  business  matter  and  a  'Ii\  - 
iu</  will  soon  cease  by  the  full  exterminaticm  of  this  uselhl  animal.'' 
(/.  ^'.  (UiNc,  Vol.  /,  Api).  i:VL 

The  abundance  of  fur  seals  at  the  tslaiid  of  Juan  I'^eriiiinde/,  two 
hundred  years  a.no  is  shown  by  I)am|»ier,  who  visited  tliat  island  in 
KiS.').  In  his  Voijaijc  Around  the  World,  otk  vd.,  1713,  Vol.  /,  pp.  .ss, 
UO,  it  is  said: 

"Seals  swiirni  as  thick  about  this  island  (of  John  F«'rinvndo,  as  ho 
terms  it)  as  if  they  had  in*  other  place  in  the  world  to  live  in;  for  there 
js  not  a  bay  nor  rock  that  oiiecau  .^ct  ashore  on  but  is  lull  of  lliem, 
*  *  *  Those  at '/(>/(»  /•'(■*•/('(»(/(>',%•  have  line,  thick,  slHut  lur; 
the  like  I  have  n(»t  taken  notice  of  anywhere  but  in  these  seas.  Ileie 
are  always  tlnuisands,  I  mi.nht  say  possibly  millions  of  them,  <Mtlier 
isittinii"  on  the  bays  or  jii»in.n'  and  cominj^"  in  the  sea  around  the  island, 
which  is  <'overi'd  witn  them  (as  they  lie  at  the  tojt  of  the  water  playinj;' 
and  sunning'  themselves)  for  a  mile  or  two  from  the  shore.  When 
they  come  out  of  the  sea  tlu'y  bleat  like  sli 'cp  fm'  their  youn,ii',  and 
thouji'h  they  [tass  thron.nh  hundreds  of  other  yoiin.n'  ones  before  they 
('(Uiie  to  their  own,  yet  they  will  not  suIUm-  any  of  them  to  suck.  The 
younfjones  are  like  puppies,  and  lie  much  ashore,  but  when  beaten  by 
any  of  us  they,  as  well  as  the  old  ones,  will  nnike  towards  the  sea,  and 
swim  very  swift  and  nimble,  tho'on  slune  they  lie  very  slun<;ishly,  and 
will  in)t  jj;o  out  of  our  way  unless  we  beat  them,  but  simp  at  us.  A 
blow  on  the  nose  soon  kills  them.  liar^e  ships  mi/^lit  here  h)a(l  them- 
selves with  sealskins  aiul  traneoyl;  for  they  are  extraordiiuirily  fat." 


ll'U 


in  this 
tit  ion  of 
he  lolal 

■tluxl  of 
'ussiiiu- 

till  (MUl- 

lf;i  cc'ii- 
iiiiinbcr 
is  siipcr- 
veii   Uic 

si'iilinj;' 
t«'(l  (hu- 
ll :i  'liv- 
uniiiial/' 

(Icz  two 
shiiiil  ill 
,  in>.  .ss, 

l(»,  as  lie 
r  tlu'ic 

tiu'iiu 
>rt  I'lir; 

I  if  re 
,  <'itlier 
island, 
playiiiji' 

Winn 
lit:',  and 
>re  Ihcy 
Tiie 
at  oil  by 
sea,  and 
ily,  and 
3  us.  A 
I  tliem- 
y  lilt." 


Another  writer,  relerrin;^  to  the  destrnction  of  I'lir  seals  in  the  sontli- 
eni  seas,  says:  '''riiese  Viiliiiilde  eieiitiires  iiiive  urtcii  Itceii  t'oiuid  Ire 
qiieiitiii;'' some  steiile  ishinds  ill  iiinuiiU3ral)!e  iimltitiidcs.  I!y  way  ol 
illiistrati«»ii  we  shall  lefer  only  to  the  liir  seal,  as  octin  lin;;  in  Soulh 
Hhellaiid.  On  this  barren  spot  ilieir  miinbeis  were  sneli  that  it  hits 
been  estiinatiMl  that  it  eoiild  have  eonlinned  i)ernian<Mit!y  to  liiriiish  a 
return  ol"  l()(>,(>()t>  tiir.s  a  year;  whieh,  to  say  nothiii,i; ol  the  piiblie  Ixuie- 
lit,  would  ha\t' yielded  animally,  froin  this  spot  alone,  a  Ncry  liandsoine 
sum  (o  the  adventurers,  lint  what  do  these  men  (h)/  In  two  short 
years,  1 82 1-2,  so  <;reat  is  the  rush,  that  they  destroy  ;5L'0,( Mil ».  They 
killed  all  and  sp  tied  none.  The  inoineiit  an  aiiiinal  landed,  tlioii,i;h 
bi;i;  with  yonnj;",  it  wasdestroyed.  Those  on  sliorcMVcre  likewise  iinine 
diately  des)>;itrlicd,  tliDiiyh  the  t;iibs  were  but  a  day  old.  Tiiese,  ot 
eoiirse,  all  died,  tiifir  niiinl)er,  at  the  lowest  ralenlation,  evceediiii; 
l(»(»,(tlH>.  No  wonder,  then,  at  the  end  of  the  second  y«';ii'  the  ani- 
mals in  this  loeality  were  nearly  extinct.  So  it  is,  w(!  add,  in  otiier 
loealities,  and  so  with  other  seals;  so  witii  tln^  oil  seals  iiiid  s((  with  tin*, 
whale  itself,  every  addition  only  makin.;;'  bad  worse.  And  all  this 
ini,uht  easily  be  prevented  by  a  littli!  less  barbarous  and  ievoltiii;i,' 
cruelty,  and  a  little  more  enli.uhtened  sellishm^ss.  FishermcMi  are  by 
law  restrained  as  to  the  si/e  of  the  meshes  of  their  net  in  takiiii; many 
of  oiir  valuable  lisli;  and  in  the  Island  of  Lobos,  in  the  lliver  Plata, 
where,  as  we  have  seen,  there  are  (piantilies  of  seals,  their  exteriniiia- 
tion  is  [)revented  by  the  ^'overnor  of  Montevideo,  who  farms  out  tin; 
trade  under  tht^  restrietion  that  the  hunters  shall  not  take  them  but  at 
staled  periods,  a^es,  ete."     ydlitntlinCs  Lihrori/,  !>•">. 

(livinj;  diu^  weiylit  to  all  the  evidence  adduced  by  the  respective 
Governments,  iinduding"  the  opinions  of  eminent  natmalists  in  various 
countries,  it  is  absolutely  certain  — 

That  this  race  has  been  conceived,  and  has  come  into  existence,  upon 
the  islands  of  the  I'nilcd  .States  in  lieiin.n  Sea.  which,  !)y  formal  legis- 
lative enact  nieiit,  have  been  set  apart  as  a  land  liniiie  tor  t  liesi' animals, 
where  they  <'aii  breed,  and  rear  their  yonii.L;,  and  renew  their  coats  ol 
far,  and  to  wlii('li  they  may  reliirn,  and  for  more  tiiaii  a  ceiitiiiy  ha\e 
re"iilailv  returned,  from  tlieir  annual  iiiiuiatioii  into  the  lii,nii  seas; 

That  these  animals,  from  the  necessities  of  the  race,  must  come  into 
existence,  and  lor  a  lar;;e  pari  of  each  year  must  abide,  upon  land; 

That  the  I'nited   States,  in  exi'ry  form   in  which   it  could   be  done, 
consistently  with  the  nature  ami   habits  of  these  animals,  luui  taken 
possession  of,  and  uiipropriated,  this  nice  us  its  ],Jioi)tityj 
IM'JL* U 


130 


Tliiit  the  taking  of  fur  seals  for  coiinnercial  purposes  attlieir  breeding 
groun<ls  on  the  !St.  I'aul  aiul  St.  George,  where  alone  there  can  be  a 
diseriniination  between  the  sexes,  will  not  itself  endanger  the  existence 
of  the  iienl  if — as  was  done  by  Kussia  and  has  been  done  by  lie  United 
States — the  killing  is  restricted  to  such  proportion  of  available  malcn  as 
will  leave  asutllcient  number  for  pur[)osc8  of  reproduction; 

That  the  killing  of  these  animals  in  large  numbers  at  any  other  plaie 
than  their  land  home  or  breeding  grounds  will  speedily  result  in  the 
loss  of  the  race  to  the  world; 

That  unrestrained  pelagic  sealing  in  Uering  Sea  or  in  the  North 
Paeilic  Ocean,  even  if  no  sath  be  tuUen  on  the  islands  by  the  United 
iStates  or  its  leasees,  will  result  in  the  exterininatioiij  within  a  very  few 
years,  of  the  entire  race  fre(pienting  those  islands; 

That  but  for  the  care,  suj)ervision,  and  protection  bestowed  ui)on 
these  animals  at  their  laud  home  by  the  United  States,  the  race  would 
long  ago  have  become  extinct; 

That  if  such  care,  supervision,  or  i)rotectioii  be  withdrawn,  the  race 
would  be  destroyed;  and, 

That  the  United  Slates,  by  its  ownership  of  the  breeding  grounds  of 
these  animals  is  alone,  of  all  the  nations  of  the  earth,  in  a  i»osition  to 
take  or  control  the  taking  of  these  animals,  so  that  their  increase  may 
be  reguUuiy  obtained  for  use  without  at  all  im]»airing  the  stock. 

In  the  light  of  the  above  facts,  which  can  not  be  disputed  by  any- 
one familiar  with  the  record,  let  us  imiuire  as  to  the  principles  of  law^ 
and  Justice  ai)i>licable  to  the  case. 

The  i»artieular  (piestion  now  under  consideration  involves  two  propo- 
sitions, to  be  se[)aiately  examined: 

First,  as  to  the  right  of  property  which  is  asserted  by  the  United 
States  in  the  Pribilof  herd  of  seals; 

Second,  as  to  the  protection  of  the  herd  by  the  United  States  while 
the   seals  are  outside  of  the  ordinary  tlueeinile  limit. 

JMuch  was  said  in  the  course  of  the  argument  as  to  the  classitication 
of  these  fur  seals  among  animals.  One  theory  is,  that  while  not  strictly 
domestic  animals,  they  are  so  nearly  like  animals  of  that  class  that, 
in  determining  whether  under  any  circumstances  they  can  become  the 
subject  of  property,  and  if  so,  under  what  circumstances,  they  should 
be  classed  as  domestic  animals,  or,  at  least,  as  domesticated  animals. 
Another  theory  is,  that  they  are  iminnxls  fertv  nittu rev,  and  not  subject  to 
exclusive  appropriati(»n  as  property,  except  in  conformity  to  the  prin- 
ciidcs  of  hiw  axiplicable  to  animals  cf  that  class.    The  lirst  theory  lias 


131 


;an  be  u 
ixisteiice 
e  United 
malts  as 

\\iiv  pliixe 
t  in  the 

lie  North 
c  United 
veiy  lew 

ved  ui>oii 
lice  Nvould 

I,  tl»e  race 

;  roll  lids  of 
)ositioii  to 
rease  may 
jck. 

I  by  auy- 
os  of  law 

wo  propo- 

|je  United 

lies  while 

ssilication 
lot  strictly 
Uiss  that, 
come  thci 
ley  shouUl 
I  animals, 
subject  to 
»  the  prill- 
heoiy  has 


beou  carefully  aiul  elaborately  examined  and  enforced  by  Senator  Mor- 
gan. Nothiii};'  can  be  added  to  what  tlie  learned  Senator  has  said 
upon  that  subjeijt.  I  propose  to  consider  the  subjects  of  property 
and  protection  in  the  otlier  aspect  named,  and  will,  therelore,  iiirpiire 
whetlier  the  claim  of  tlie  United  States  to  own  these  seals  is  supported 
by  any  priiicii»les  of  law  universally  recoyiiized  as  controlling  uijoii  the 
question  of  property  in  animals  commonly  classed  as  wild,  rather  than 
domestic  animals. 

The  main  contentions  of  the  United  States,  in  support  of  its  claim 
of  i)roperty,  are  these: 

That  while  the  general  rule  is  that  no  one  can  have  an  absolute 
proi)erty  in  things yl'/vc'  natnnc,  there  are  animals  so  near  the  boundary 
drawn  by  the  terms  wild,  tame,  and  reclaimed,  that  the  (piestion 
must  be  determined  by  a  consideration  of  their  nature  and  habits  in 
connection  with  the  grounds  upou  which  the  institution  of  proj^erty 
stands; 

That,  accfuding  to  the  established  rules  of  law  prevailing  in  all  civ- 
ilized countries,  the  essential  facts  that  render  useful  animals,  classed 
as  wild  animals,  the  subjects  of  i)roperty,  when  in  the  custody  or  con- 
trol of,  as  well  as  while  temporarily  absent  from,  thisir  masters,  are  the 
care,  industry,  and  supervision  of  man  so  acting  on  the  natural  dis])o- 
sition  of  the  animals  as  to  encourage  their  habitual  return  to  a  particu- 
lar place  and  to  his  custody  and  power  at  that  place,  whereby  he  is 
enabled  to  deal  with  them  as  a  whole,  in  a  similar  manner,  and  so  as 
to  obtain  from  them  similar  benefits,  as  in  the  case  of  domestic  animals; 
that  for  all  puri)oses  of  i)roperty,  animals  so  acted  upon  and  dealt 
with  may  be  assimilated  to  domestic  animals,  even  if  they  be  not 
strictly  of  that  class; 

That  to  this  class  the  L'ribilof  fur  seals  belong,  because  at  the  same 
season  in  every  year  they  return  to  the  same  i)hice,  the  islands  of  St. 
Paul  and  St.  (ieorge,  where  they  become  so  far  subject  to  the  power  of 
the  United  States  that  its  agents  or  licensees  can  treat  them  in  many 
ways  as  if  they  were  domestic  animals;  that  all  that  is  needed  to  ensure 
their  return  to  and  remaining  upon  those  islands  from  year  to  year, 
whereby  the  benefits  of  an  increase  of  their  numbers  can  be  obtained, 
is  that  such  agents  and  lessees  shall  abstain  from  repelling  them 
as  they  approach  the  land,  defend  them  after  they  have  arrived 
against  pursuit  by  hunters,  disturb  them  as  little  as  possible  when 
making  selections  for  commercial  purposes,  and  take  males  only  for 
purposes  of  commerce;  and 


i 

ft.; 


m 


1^ 


ji  '■« 


132 

That  the  United  States,  its  a<;eiit8  and  lessees,  do  all  that  is  neccs 
sary  to  secure  their  retnrn  eacili  year  to,  and  tlieir  veniaiiiinjn'  at,  tiic 
I'ribilof  Islands  for  all  the  purposes  lor  which  they  must  come  to,  aud 
for  a  time  abide,  upon  land. 

Tlieseeousiderations,  it  is  coiiteuded  — assuininj^  that  these  fur  seals 
areot  tlie  eliiss  coniiiionly  called  animals /Ivoj  naturoi — rest  upon  a  prin- 
ciple fnndauiLMital  in  tlie  institution  of  pn)pi'rty,that  principle  bcinj^that 
whenever  any  useful  wild  aninuils,the  su[)ply  of  which  may  be  exhausted 
by  iiuliscriminate  slanj^hter,  or  by  reckless  hatidlinj,',  "so  far  submit 
themselves  to  the  control  or  dominion  of  particular  men  as  to  enable 
them  (xclnsin-Jy  to  cultivate  such  animals  and  to  obtain  the  annual 
increase  for  the  supply  of  human  wants,  and,  at  the  same  time,  to  pie- 
serve  the  stock,  they  have  a  pr(>perty  in  them ;  or,  in  other  words,  what- 
ever may  be  justly  regarded  as  the  product  of  human  art,  industry,  and 
self-deniai,  niust  be  assigned  to  those  who  make  these  exertions,  as  their 
merited  reward." 

In  opposition  to  this  claim  of  property  by  the  United  States,  Great 
Britain  contends  that  these  seals  are  strictly  animalsybw/za/Hra:;  that 
theoidy  [  roi)erty  in  them  known  to  the  law  is  dependent  on  actual,  ])hysi- 
cal  possessi(m;  that  the  United  States  or  its  "licensees  have  the  exclusive 
riyht  to  take  possession  of  them  only  while  they  are  on  the  islands  of 
St.  Paul  and  St.  Georye,  but  that  such  right  is  lost  when  they  leave 
the  Islands  and  go  into  the  high  seas,  for  the  purpose  of  obtaining  lish 
for  food,  even  if  they  have,  when  so  leaving,  the  intention  to  return 
to  their  breeding  grounds;  that  the  citizeus  or  subjects  of  all  luitions 
have  eipmliy  the  right  to  kill  or  take  possession  of  them  in  the  high 
seas;  that  while  on  the  Islands  neither  the  United  States  nor  their 
lessees  take  numual  possession  of  the  seals  other  than  of  those 
actually  killed;  that,  even  if  it  be  true  that  the  care,  industry,  self- 
denial,  and  protection  bestowed  upon  these  animals  while  on  their 
breeding  grouiuls  has  secured,  does  now  secure,  and  will  alone  secure, 
this  race  from  extermination  by  ])el;igic  sealing,  that  fact  can  not 
give  a  right  of  proi)erty  to  the  United  States;  and  that  the  right  of 
]>elagic  sealers  to  captuie  ajid  kill  these  seals  in  the  o]ien  seas,  for 
l)rolit,  by  any  methods  they  choose  to  employ,  even  by  such  as  will 
<'ertainly  or  soon  destroy  the  entire  race,  is  supported  by  the  estab- 
lished principles  of  international  law. 


While,  in  a  sense,  all  i>roperty  has  its  root  in  municipal  law,  I  agree 
that  the  questiou  us  to  the  owueisbip  of  these  animals  when  tUey  am 


133 


8  necCB 
«•  at,  tlic 
i  to,  ami 

fur  seals 
liapiin- 
cingtliat 
'cliaustfd 
u"  submit 
to  enable 
e  annual 
le,  to  pie- 
ds,  wliat- 
istiy,  and 
s,  as  their 

tes,  Great 
urw;  that 
ual,  ]>hysi- 
■  exclusive 
islands  of 
hey  leave 
vininy  lish 
to  return 
dl  nations 
the  high 
nor  their 
of   those 
stry,  sclt- 
b  on  their 
lie  secure, 
It  call  not 
3  right  of 
I  seas,  for 
h  as  will 
he  estab- 


^v,  I  agree 
tUey  are 


in  the  open  waters  of  the  oooaii,  the  highway  of  all  peoples,  is  to  bode- 
termined  ultinnitely  by  the  public  law  of  imtions — that  is,  by  those  prin- 
ciples common  to,  and  recognized  as  binding  by,  all  civilized  countries 
in  their  intercourse  ami  relations  with  each  other.  No  other  law  can  be 
appealed  to  for  the  settlement  of  a  dispute  between  sovereign  nations 
as  to  the  ownership  of  animals  when  found  on  the  seas  beyond  their 
resi)ective  territorial  limits.  J>ut  by  what  considerations  are  we  to  be 
governed  in  ascertaining  what  the  law  of  nations  recognizes,  allows,  or 
forbids? 

The  counsel  for  the  TTnited  States  contended,  in  argument,  that  in 
determining  what  rights  are  recognized  by  the  law  of  nations,  the  Tri- 
bunal is  not  to  ignore,  but  must  give  effect  to,  those  principles  of  right 
reason,  justice,  humanity',  and  nuirality  which  have  their  foinidation  in 
the  law  of  nature  as  applied  to  the  institution  of  ]>roperty.  Tliis  view 
was  earnestly  <'ond)ated  by  the  counsel  of  (Ireat  Uritain,  and  it  was, 
in  efl'ect,  said  that  the  teachings  and  precepts  of  the  law  of  nature 
were  of  no  importance  in  the  present  incpiiry;  that  tlie  rigiits  of  these 
two  nations  could  not  be  made  to  depend,  in  any  deg»'ee,  upon  absti-act 
princii)les  ft)unded  only  on  reason.  Justice,  humanity,  or  morality,  but 
nuist  bedetermined  upon  grounds  of  positive  law,  resting  in  theafllrm- 
ative  assent  of  the  nations,  independently  of  ethical  considerations  aris- 
ing out  of  distinctions  which  tiie  c<»nscience  of  the  world  makes  between 
what  is  morally  right  an<l  what  is  morally  wrong,  or  between  what  is 
supported  by  sound  reason  and  justice  and  what  is  not  so  supported. 

Of  course,  if  there  be  any  settled,  recognized  lules  of  the  law  of  nations 
governing  the  particular  question  under  consideration,  tliey  must  con- 
trol our  decision  whatever  may  be  our  view  of  tlu'ir  justice.  The  two 
nations  interested  are  bound  by  such  rules  and  the  Tribunal  may  not 
disregard  them,  or  refuse  to  give  effect  to  them.  IJut  if  the  precise 
case  befor«^  it  is  not  covered  by  some  positive  rule,  decision  or  i>rece- 
dent,  founded  on  the  conventions  or  established  usages  of  the  civilize«l 
nations  of  the  earth,  and  expressly  set  forth  in  the  writings  of  public 
urists,  we  are  not,  for  that  reason,  to  hold  that  it  is  not  pro- 
vided for  by  the  law  of  nations.  As  a  court  sitting  under  municipal 
authority  would  be  bound,  in  the  absence  of  precedent,  to  give  judg- 
ment according  to  the  principles  of  right  derived  from  the  whole 
body  of  the  law  to  which  it  may  properly  refer,  so  this  Tribunal, 
constituted  for  the  detcrnnimtion  of  questions  depending  upon  the  law 
of  imtions,  may,  and  if  it  fulfills  the  objects  for  which  it  was  const  ituted, 
must,  h)ok  into  the  recognized  soiiices  of  that  law  and  seek  in  the 


»■  r 


'':!'  <'m 


M  :i- 


134 

(loiiijiin  of  pfOTioral  jnrispnulonoe  for  the  rule  of  decision  in  tlic  case 
before  it,  Oiie  of  tins  recojrni/-(Ml  sources  of  the  liiw  of  natioiiH  are  the 
l)rin('iples  of  natural  reason  and  jnstiec  ai)i)li('able  to  tlie  relations 
and  intercourse  of  independent  ])oliticaI  societies.  Those  princi- 
ples may  be  said  to  have  their  oriy;in  in  the  Law  of  Nature,  or  in 
what  is  sometimes  called  the  Natural  Law  of  Equity,  because  ap- 
])roved  by  the  moral  sense  of  nniiikind.  No  earthly  tribunal,  adminis- 
tering: Justice  between  imlividuals,  oi-  between  nations,  if  unfetteied  by 
statute,  or  by  bindinji'  itrecedent,  may  ri<;iitfnlly  disregard  the  rules  of 
reason,  nnn-ality,  humanity,  and  justice  derived  from  that  law.  Those 
rules  are  not  the  less  binding:  because  not  fornu.lated  in  scune  book, 
ordinance,  or  Ireaty.  Certainly,  this  Tribunal  of  Arbitration  nnist 
regard  the  rules  of  international  morality  and  Justice,  a])plicable  to  the 
subject,  and  fairly  to  be  deduced  from  the  rights  and  duties  of  States 
and  from  the  natun*  of  moral  obligations,  as  an  integral  ])art  of  the 
law  of  nations  by  which  the  matters  submitted  to  it  arc  to  be  deter- 
mined. Tlie  institulion  of  property  is  ordained  by  society  for  its 
improvement  and  preservation.  And  then^  are  certain  rules,  aris- 
in;^  out  of  the  xoiy  necessities  of  that  institution,  whicii  are  com- 
mon to  the  Jurispi'udence  of  all  civilized  nations.  While  tl-ese  rules 
may  be  juore  tVcipiently  .bund  recognized  in  municipal  law,  they 
are  so  grounded  in  the  well-b<>iugof  nnin,  and  so  thoroughly  supported 
by  right  reason,  and  natural  Justice,  as  to  have  become  universally  rec- 
ognized, and,  therefore,  must  be  regarde<l  as  part  of  tlu^  common  liiw  of 
civilized  countries.  Nations,  no  more  than  individuals,  may  disregard 
those  rules,  for  upon  their  observance  dei>ends  the  existence  of  organized 
society  and  the  security  of  government  among  civilized  peoples. 

That  I  an»  not  in  error  in  sui)i)osing  that  thes(^  views  have  been  gen- 
erally a<!c<ii>ted  and  are  enforced  where  action  is  not  controlled  by  stat- 
utes or  by  the  i)i'ovisi()ns  of  treaties,  will  appear  from  the  decisions  of 
courts  ami  from  the  works  of  writers  upon  international  law. 

Chief  Justice  iMajshidi,  delivering  tliejudgment  of  the  Supreme  Court 
of  the  United  States,  after  obs«\rving  that  the  law  of  nations  is  in 
part  unwritten  and  in  ])ait  conventional,  said  that  "to  ascertain  that 
which  is  unwritten  we  resort  to  the  great  princijdes  of  reason  and 
justice;  but  as  these  princijdes  will  be  diffeiently  understood  by 
diifer<Mit  nations  under  dillerent  cir<',umstances,  we  consider  them  as 
being,  in  some  degree,  (ixed  and  rendered  stable  by  a  series  of  Judicial 
decisions."  Thirty  Ilhds.  of  tSuf/ar  vs.  Boyle,  eU\^  9  Cranvh^s  Rcporls, 
191, 197, 


135 


the  rase 

\  are  the 

rchitioiis 

(   priiici- 

ro,  or  in 

arise  ap- 

adminis- 

ttered  by 

(•  iiHes  of 

r.    Those 

une  book, 

;iou  must 

ble  to  the 
of  States 

irt  of  the 
be  <h'ter- 

ty  for  its 

•uh;s,  aris- 
are   (!Oin- 

J'ose  ruh's 

law,   they 

supported 

rsally  rec- 

iiion  law  of 

,•  (lisrefjard 
'organized 
des. 

3  been  pfen- 
ed  by  stat- 
ocisiona  of 

ivoinc  Court 
itions  is  in 
.;ertain  that 
reason  and 
(Mstood  by 
or  them  as 
of  judicial 
liWs  Reports, 


In  the  case  of  The  JJelrna,  Lord  St^^well,  considerinn;  the  prinoiples 
of  international  law,  observed  "that  some  people  hav*^  foolisldy  im- 
affined  that  there  is  no  other  laAv  of  nations  but  that  which  is  derived 
from  positive  compact  and  convention."  4  liobinson''s  Admiralty, 
Rep.  7. 

Bacon,  in  his  Dissertation  on  the  Advancement  of  Learinnu,  says 
that  "there  are  in  nature  certain  fountains  of  Justice,  whence  all  civil 
laws  are  derivetl  but  as  streams;  aTul  like  as  waters  do  take  tinctures 
and  tastes  from  the  soils  through  wiiich  they  run,  so  do  civil  laws  vary 
according  to  the  regions  and  governments  wliere  they  are  planted, 
though  they  proceed  from  the  same  fountain.''     Blc.  -2,  chnp.  S3,  see.  ft. 

Iilackstone  declares  that  the  law  of  nature  being  coeval  with  man- 
kind, and  dictated  l)y  (lod  himself,  "is  binding  all  over  the  globe  in  all 
countries,  and  at  all  times,"  and  that  "no  liuman  laws  are  of  any  validity 
if  contrary  to  this,  and  such  of  them  as  are  vali<l  derive  all  their 
force  and  all  their  authority,  mediately  or  immediately,  from  this 
oiiginal."  And  he  also  says:  "As  it  is  imi)ossil)le  for  the  whole  race  of 
mankind  to  be  united  in  one  great  society,  they  must  lUM-essarily  divide 
into  many,  and  form  sei)ariite  stat«'s,  connnonwealths,  and  nations, 
entirely  independent  of  each  oMier  and  yet  lial>leto  nuitual  intercourse. 
Hence  arises  a  third  kind  of  law  to  regidate  this  nmtual  intercoiu'se, 
called  the  'law  of  nations,'  which,  as  noneof  tlicsc  states  will  acknowledge 
a  superiority  in  the  other,  can  not  be  dictated  by  any,  but  depends  en- 
tirely upon  the  rules  of  natural  lair,  or  upon  mutual  ('ompacts,  treaties, 
le;igues,  and  agreements  between  those  s(^veral  comnninities;  in  the 
co!istru(^tion,  also,  of  whicli'i'ompaiits  we  have  no  other  rule  to  resort  to 
luit  the  lani  of  nature,  being  the  only  one  to  which  all  the  <;ommunitJes 
aie  erpially  subje<5t,  and  therefon^,  the  civil  law  very  Justly  ol)serves 
that  qvod  naluralis  ratio  inter  omnes  homines  constituit  roeaturjifsffent- 
t»»H."    Bk.  t,p.  11,  -1:1. 

In  his  Conunentaries  on  [nternatioual  I^aw  Sir  Robert  rhillimore 
says:  "(Jrotius  enumerates  these  sources  [of  international  law]  as  being 
^  ipsa  natura,  leges  divino',  mores,  et  paeta.''  Tn  17.~>.'i  the  British  Govern- 
ment nnide  an  answer  to  a  nuMuorialof  the  Prussian  (lovernment,  which 
was  termed  by  Montesfjuieu  reponsc  sans  n'plique,  and  which  has  been 
generally  recognized  as  one  of  the  ablest  expositions  of  international 
law  ever  embodied  in  a  state  paper.  In  this  memorable  document  the 
law  of  nations  is  said  to  be  founded  upon  Justice,  equity,  convenience, 
and  the  reason  (»f  the  thing,  and  confirmed  by  long  usage."  1  Philli- 
more,  eh.  .9,  see.  30.     In  the  Judgment  delivered  by  him  in  Queen  vs. 


11  p 

I''' 


J*! 


hi: 


f\; 


13fJ 

yfn/w,  TjOiv  Ticp., .?  /7.r^7/.  /)/»'.  ?U,  Dr.  Pliilliinore  statos  flint tlinanswor 
was  fViiiiiod  by  Lord  MiinslioM  iiihI  Sir  (icor{;o  hve.  Tlic  same  learned 
aiiMior  declares  that  the  sources  from  whicih  international  Juris))nideiice 
is  derived  embrace  not  oidy  the  universal  eonsentofnations,  as  expressed 
by  positive  com])act,  and  as  implied  by  usage,  custom,  and  practice, 
as  disclosed  by  prect'dents,  treaties,  public  documents,  marine  ordi- 
nan<*es,  the  <lecisions  of  international  tribuna,ls,  and  the  works  of  emi- 
nent writers  upon  international  Jnrisinudcnce,  but,  also,  ''the  Divine 
law,  end)0(lyinj;  the  piinciples  of  eternal  Justice,  im]»lanted  by  (lod  on 
all  moral  and  social  cieatures,  of  which  nations  are  tlu^  aj;s'i'*'Wi't<'s  and 
of  which  governments  arc  the  international  organs,"' as  well  as  "  the 
Itevcalcd  Will  of  (iod,  cnfoicing  and  extending  these  princijdes  of 
natural  Justice,"  and  "  Heason  which  governs  the  application  of  these 
principles  to  ]>articular  cases."  7  J'liillivunr,  p.  (17,  c.  S^  §  ,W.  Tn  the 
above  case  of  (fiivru  vs.  /w7/»,  Sir  Williau)  IJaliol  IJrett,  now  Lord  lOslier, 
iMaster  of  the  Kolls,  alter  observing  that  the  authorities  made  it  clear 
that  the  consent  of  nations  was  requisite  to  make  any  ])ro])osition  a 
l)art  of  the  law  of  nations,  w<'ll  said:  "  Their  consent  is  to  be  assumed 
to  the  logical  a|)i)lication  to  given  facts  of  the  ethical  axioms  of  right 
and  wrong.  Such  an  application  is  tlu^  foundation  of  ev<'ry  system  of 
law,  including  necessarily  the  law  of  nations."  L.  7»'.,  2 Exih.  JUv,  i:il. 
Chancellor  Kent,  whose  writings  are  known  to  the  jurists  of  all 
nations,  states  in  his  Commentaries,  that  the  nmst  us«'ful  and  ]tractical 
])art  of  the  law  of  nations  is,  no  doubt,  instituted  or  positive  law, 
founded  on  usage,  consent,  and  agieement,  ami  that  it  would  be  imi)roi)er 
to  separate  this  law  (Mitirely  from  natuial  •juris|U'udeiU!e  an<l  not  to 
consider  it  as  deriving  much  of  its  force  and  dignity  from  the  same  prin- 
(;il>les  of  right  reason,  the  same  views  of  the  nature  and  constitution  of 
man,  ai.d  the  same  sanction  of  Divine  revelation,  as  those  tVom  which 
tlu^  science  of  morality  is  deduced,  and  he  says:  "There  is  a  natural 
and  a  positive  law  of  nations.  l>y  the  former  every  state,  in  its  relations 
with  other  states,  is  bound  to  conduct  itself  with  Justice,  good  faith, 
and  benevolence;  and  this  apjdication  of  the  law  of  nature  has  been 
called  by  Vattel  the  necessary  law  of  nations,  because  nations  are 
bound  by  the  law  of  nature  to  observe  it;  and  it  is  termed  by  others 
the  internal  law  of  nations,  because  it  is  obligatory  upon  them  in  ])oint 
of  conscience.'"  "We  ought  not,  therefore,"  that  areat  iurist  continues, 
"to  separate  the  science  of  i)ublic  law  from  that  of  ethics,  nor  encour- 
age the  dangerous  suggestion  that  governments  are  not  so  strictly 
bound  by  the  obligations  of  truth,  Justice,  and  humanity,  in  relation  to 


137 


I 


i 


ollior  powers,  ns  tlioy  nro  in  tlic  tnniinjrpmont  of  tlioir  own  local  con- 
corns."  Stiit(^s  or  luxlios  politic,  lio  ohstTves,  ''arc  to  he  consi<lcrt'(l  as 
moral  persons,  liavinu'  a  public,  will,  capable  and  IV«>e  to  do  ri}>lit  and 
wroiij;,  inasmuch  as  tliey  are  collections  ol"  individuals,  each  of  whom 
carries  with  him  into  the  servic«^  of  tli(^  community  tln^  same  binding' 
law  of  morality  and  religion  which  oufjht  to  control  his  conduct  in  ])ri\at(^ 
life.  The  law  of  nations  is  a  complex  system,  coni|»os<'d  of  various 
inifredients.  It  consists  of  j>eneral  ]>rinciides  of  rijjht  and  Justic<', 
eqindly  siiitaldo  to  the  j^overnment  of  iudividals  in  a  state  of  natural 
e(]uality  and  to  the  relations  and  conduct  of  uiitions;  of  a  collection 
of  usaucs  and  customs,  the  <;r(»wth  of  civilization  and  connnerce 
and  a  code  of  conventional  or  p(»sitive  law."  His  conclusions  upon 
this  siibjci't  are  thus  statofl:  "In  the  absence  of  these  latter  re,i;ula- 
tions,  tlic  intercourse  and  conduct  of  nations  are  to  be  jn'ovei-ned  by 
]MincipIos  fairly  to  be  deduced  from  the  rij;hts  and  duties  of  nations 
and  the  nature  of  nnual  oblijiation;  and  we  have  the  authority  of  the 
lawyers  of  antiquity,  and  of  some  of  the  first  nnisters  in  the  modern 
school  of  pnbli(;  law,  for  placin*;'  the  moral  obli<^iitions  of  nations  and 
of  individuals  on  similar  jirounds,  and  for  considering  individual  and 
national  morality  as  i>arts  of  one  and  the  same  s<'i(Mice.  The  law  of 
nations,  so  far  as  it  is  fouiuled  on  the  principles  of  natural  law,  is 
equally  binding'  in  every  age  and  ni)on  all  mankind."  Knifs  Vommen- 
iaries,  Part  7,  Lcct.  7,  pp.  i>-i.  These  views  of  Chancellor  Kent  seem 
to  be  ai)inoved  by  tln^  instiucted  judgment  of  Sii'  Travers  Twiss,  the 
ennnent  pul)licist  of  (Ireat  ISritain,  who  has  himself  divided  the  Law 
of  Nations  into  Natural  or  Necessary  Law,  and  Positive  or  Instituted 
Tiaw.     The  l^aw  of  \<(tions,  eh.  ri,  sees,  s;,' and  10.")^  e<l.  7.S'.s7,  pp.  ] i;j,  J7f). 

Ortolan,  in  his  work  on  rnternational  Ikule.s  and  Diplonuu'y  of  the 
Sea,  thus  states  his  views:  "It  is  apparent  that  nations  not  having 
any  common  legislator  over  them  have  frequently  no  other  recourse  for 
determining  their  respective,  rights  but  to  that  reasonal)le  sentiment  of 
right  and  wrong,  to  those  nioial  truths  already  brought  to  light,  and  to 
those  which  are  still  to  be  demon>*t  .ncd.  This  is  what  is  meant  when 
it  is  said  that  natural  law  is  the  first  basis  of  international  law."  Vol. 
],  hi:  1,  ch,  iv.,2).  71. 

Vattel,  in  the  ])rcface  of  his  celebrated  work,  states  that  the  moderns 

ition  of  the  law  of  initions 


ally  agi 


ipp 


to  that  system  of  right  and  justice  whicrt  ought  U^  i>revail  between 
nations  or  sovereign  states.  And  in  the  btxly  of  his  work  he  says: 
"As  men  are  subje(;t  to  the  law  of  natuie,  and  as  their  union  in  civil 


138 


u 


Rocioty  can  not  liavo  nxompfod  Miom  from  the  oblifjation  to  obsorvo 
those  hiws.  siiMio  by  tliat  union  they  <lo  not  <'Paso  to  bo  nu'ii,  tln»  ontini 
nation,  whoso,  coinmou  will  is  but  tho  result  of  the  nnitetl  wills  of  the 
citizens,  remains  subject  to  the  law  of  nature,  and  is  bound  to  n^apect 
them  in  all  her  proiicediiifjs."  We  nuist,  therefore,  he  says,  api)ly  to 
nations  thi^  rules  of  the  law  of  nature,  where  they  <'an  be*  appli('<l  in  a 
manner  suitable  t^o  the  subject,  "in  order  to  discover  what  their  obli- 
jjatioiis  are,  and  what  their  rij;hts;  eonse(|neiitly,  tiie  law  of  natimis  is 
orifjfinally  no  other  than  the  law  of  nature  applied  to  nations."     Ch.  r>(!, 


Sirs.  5 


0. 


u 


VVheaton,  whose  authority  is  recojjni/ed  by  all  publicists,  says: 
Inteinational  law,  as  understood  anuui^-  civilized  nations,  may  1)0 
defined  as  coiisistin;;'  of  thos(?  rules  (»f  conduct  which  reason  deduces,  as 
c(Misonant  to  justice,  from  tlu'  nature  of  the  society  existinjf  amonji: 
independent  natiiuis,  with  such  delinitions  and  niodi(icati(Mis  its  may  be 
established  by  <;eneral  consent."  Jutcniational  Law,  I't.  U  '/'•  ^?  •'>'''''• 
111.  I^omeroy,  an  American  writer (tfdistiii(!ti(ui,  observes:  "What  is 
called  international  law  in  its  <;eneral  sense,  I  would  call  international 
morality.  It  consists  of  those  rules  founded  upon  justice  and  equity, 
and  deduced  by  ri^jht  reason,  accordinj;  to  which  independent  states 
are  accustomed  to  I'ciiulate  their  mutual  intercourse,  and  t^>  which  they 
conform  tln'ir  mutual  relations."  lutvruatUtual  Law,  cd.  /N.sy;,  (I  /,  S. 
Q'J.  Wools(\v,  another  Ameri<'an  writer,  cited  by  both  sides  in  arjuu- 
nient,  says:  "  It  would  be  stranjie  if  the  state,  that  ]»ower  which  defines 
rij»hts  and  makes  tiiem  real,  which  <!reates  moral  persons  or  associa- 
tions with  ri^lits  and  oblijuations,  sh»aild  have  no  such  relations  of  its 
own — should  be  a  physical  and  not  a  moral  entity.  In  fact,  to  take  the 
op])osite  fjround  would  be  to  maintain  timf  flicre  is  no  riiiht  and  wroiijj 
in  the  intercourse  of  states,  and  to  leave  t.',eir  conduct  to  the  sway  of 
mere  eonvenient'e."     Ed.  of  IS!).'?. 

IJurlamaipii,  in  his  Piinciples  of  Natural  and  Ptditic.  Law,  (p.  14), 
after  cpiotins  witli  approval  the  obs(>rvatioii  of  Ifohbes  that  natural 
law  is  divided  into  (bo  natural  law  of  man  and  the  natural  law  of 
states,  and  that  the  latter  is  what  is  called  the  law  of  nations,  presents 
the  sanie  jjeneral  view:  "Tiius  natural  law  and  the  law  of  natiiuis 
are  in  reality  one  and  the  sanu^-  thinj;',  and  dilVer  only  by  an  external 
denomination.  We  nuist,  therefiu'e,  say  that  the  law  of  nations,  proj)- 
orly  so  called,  and  considered  as  a  law  proceeding"  tVom  a  sui)erior,  is 
nothinjjelse  but  the  law  of  nature  itself,  notapplie<l  to  men,  (Muisidered 
sifuply  as  such,  but  tr»  nations,  states,  or  their  chieCs,  in  the  relations 
they  have  to<^ether,  and  the  several  interests  they  have  to  manage 


139 


I 


botwooti  onvh  oMior."  Ed  1^3.3^  PL  TT,  c.  f>,  pp.  inr,,  (>.  In  this  view 
I'lilloiKlorf  o.\|if(>s.s(Ml  lii.S(!(»ii(Mii'nMi(i(',  obscrviiifj  tliat  hv  i'0('(»y;iiiz(Ml  "no 
(•tlior  kind  of  voluntiiry  or  i>ositiv«i  iiitciMiiitioniil  liiw,  iit  least  non« 
liavint;  I'orco  of  law,  propdly  so  called,  and  binding;  upon  nations  as 
cnianatinn'  from  a  superior."  Vol.  1,  book  3,  c.  5,  ^  i'.'i,  p.  2i3,  5th.  e<l.; 
eil  1739,  l'])i(iliHh,  Iff). 

ll'Mnne(Mns:  "  Tiie  law  of  nations  is  the  law  of  ii.itnre  iiself  respect- 
in;;;  or  applied  to  social  life  and  the  all'aiis  of  societies  and  independent 
states.  *  *  •  Hence,  wo  nniy  infer  that  the  law  of  nature  doth 
not  diifer  from  the  law  of  nations,  neither  in  respect  of  its  foundation 
and  first  i)rinciples  nor  of  its  rules,  bat  solely  with  respect  to  its  object, 
Wiier(^fore  theii'  opinion  is  y^ronndless  wiio  speak  of,  1  know  not  what, 
law  of  nations  distinct  from  the  law  of  natures"  Vol.  I,  Kd.  /76'.7,  See. 
31,  p.  11. 

Ilautefeuille:  "  What  is  true,  aiid  in  my  opinion.  Incontestable,  is 
that  notions  of  \vh"t  is  just  and  ri,i>ht,  and  what  is  unjust  are  found  in 
all  men;  it  is  that  all  individuals  of  the  human  race  that  are  in  the 
enjoyment  of  reason  have  these  notions  ^i-aven  upon  their  hearts,  and 
that  they  l>rin.<;"  with  them  into  tlu^  world  when  they  an'  born.  These 
notions  do  not  extend  to  all  the  details  of  law  as  do  civil  laws,  but  they 
haveroferen(!e  to  all  the  most  |)romin(Mit  points  of  hiw.  It  cannot 
1)((  deided  that  the  idea  of  property  is  a  natural  and  innab^  idea.  *  * 
The  natural  or  divine  law  is  the  only  one  that  can  be  applied  anion^ 
nations— amoni;'  beings  free  frou)  every  bond  and  havin;;'  n(»  interest 
in  eonnnon.  *  *  Inteinational  law  is,  therefons  based  upon  the 
divine  and  prinutive  law;  it  is  all  derived  fV<)m  tins  source."  Vol.1, 
p.  If!,  JSJS. 

MartcMis:  "Each  nation  beinj?  considered  as  a  moral  bcMiifj,  livinpf  in 
a  state  of  nature,  the  obligations  of  one  nation  towards  another  are  no 
more  tiian  those  of  individuals,  modilii'd  and  applied  to  nations;  and 
this  is  what  is  called  the  natural  law  of  nations.  It  is  universal  and 
necessary,  because  all  nations  are  .<;overned  l)y  it,  even  ;)<>ainst  their 
will."     Ldir  of  Mifionn,  Gcruuni,  Ifli  nl.  /N'.v/,  p.  3  of  rnlrotluction. 

I^'er^uson :  "Interiuitional  law,  bein.!"' based  on  internati(»nal  nioralitv. 


depeiulsupfui  the  state  of  proj;ress  made  in  ci\  ili/ation. 


In- 


vesti^atin,i>'  thus  this  spirit  of  law,  we  lind  1  he  delinition  of  International 
Law  to  consist  of  <;ertain  rules  of  ccuuluct  which  reason,  i)rom))ted  by 
conscience,  d<'duces  as  consommt  to  Jii  lice,  with  such  limitations  and 
modilications  as  may  be  established  by  ;;eneral  consent,  to  meet  the 
exigencies  of  tlie  present  state  of  society  as  existing  amoii^'  nations  and 
which  modmn  civili/od  states  refiard  as  bindiu"-  on  them  in  their  rela- 


5 


140 


"ii: 

3i' 


l>  ' 


tions  with  one  anotlicr,  with  a  force  compnrahlp  in  nature  and  (Icp:rce 
to  tliat  bitulinfT  the  consciontious  j)ei\son  to  obey  tlio  laws  of  his  country." 
Mamial  of  Iitcrnational  Law,  Butch,  ISSi,  Vol.  1,  PL  II,  chap.  3,  sec, 
21,  p.  00. 

Carh)s  Testa:  "This  a])i)lication  of  the  precepts  of  natural  law,  which 
ohlif^es  nations  to  practice  the  same  duties  that  it  prescribes  for 
individuals,  co^stitut(^s  the  law  of  nations,  which,  when  considered 
accordiii};  to  its  ori{?in  (which  is  based  upon  natural  law),  is  also  called 
thcpriinitiveor  necessary  law  of  nations.  *  *  *  The  origins  of  inter- 
national law  are  therefore  three  in  number:  (1)  The  reason  and  the 
conscience  of  what  is  just  ami  unjust,  independent  of  any  prescription; 
(2)  custom;  (.">)  public  treati(\s.  The  ])rinciples,  practices,  and  usages 
of  the  law  of  nations,  in  accordance  with  these  limits,  regulate  the 
coudu<'t  of  nations,  and  it  is  for  this  I'eason  that  in  their  genei-ality  they 
constitute  international  law.  Conveiitioual  law  may  abrogate  the  law 
of  custom,  but  it  loses  its  character  .as  a  law  if  it  establishes  provisi(Mis 
at  variance  witli  "satural  law."  Le  Droit  Jntcrnatlonnl  Maritime 
{l^^rtiijiuesc),  tranxfutvil  hi/  If.  Jiotitiron,  ISSO,  Pt.  1,  eh.  1,  p.  46. 

Looking,  then,  to  the  reason  of  the  thing,  and  to  the  coiu^irrence  of 
views  upoii  this  point,  auumg  Jurists  and  publicists,  I  must  withhold  my 
assent  from  the  i)roposition  that  this  Tribunal,  in  ascertaining  whether 
the  law  (»f  nations  sanctions  and  supports  the  claim  of  pr<»perty  made 
by  the  United  States,  may  not  consider — the  question  not  being  con- 
cluded by  treaties  or  ])recedents — what  is  demanded  in  respect  to  the 
subJcH't  of  controversy  by  the  law  of  nature,  that  is,  by  the  i)rinciples  of 
justice,  sound  reason,  nunality,  and  equity,  as  recognized  and  approved 
by  civilized  peoi)1es. 

The  ([uestiou  was  ])ropounded  in  argument  whether  any  precedent 
])recisely  in  i)oint  was  recorded  in  the  writings  of  ])ublicists,  or  in  the 
jndgMuents  of  the  courts,  or  in  the  statutes  or  ordinances  of  nniritime 
nations,  that  supports  the  claim  {>['  the  United  States  to  own  these 
seals  and  prote<'t  them  when  they  are  in  the  seas,  beyond  territorial  juris- 
diction. Tliis<iuestion  unist,  of  crnrse,  bc^  answered  in  tlu^  negative,  be- 
Cinis<>,  so  far  as  is  known,  the  case  has  never  before,  nriseti.  And  it  would 
not  now  be  ai  practictal  one  luit  for  the  iul<'rvention  of  jM'lagic  seiiling, 
the  prosecution  of  which  involves  the  very  existen<'«^  of  this  race 
of  aniumls.  It  lias  not  heretofore  been  asseited  in  behalf  of  any 
Uiition  tJnit  the  doctrine  of  the  iVeedom  of  the  seas  recognized  it  as  a 
}•/(//(/,  in  iiidividuids,  even  by  methods  baib;»rous  suid  cruel,  \o  cxtcr- 
mi)utte  a  rac(^  of  ns<'rul  animals,  found  by  them  in  tlu^  high  seas,  and 
thereby  deprive  the  world  of  all  benellt  to  be  derived  from  them.    It 


141 


f'CdODt 

ill  the 
iritime 
1  Micse 
il  jui'is- 

\v»»i;ld 
('nlin;i', 

S    liU'O 

of  any 

it  as  a 

>  c.rtvr- 

s,  and 

■in.    It 


is  more  pertineut  to  infinirc  whotlier  this  claim  of  property  is  sup- 
l)orted  by  i)rincipli's  of  inoriility,  reason,  equity,  iind  justice  every 
where  recognized  as  vital  in  organized  society.  It  is  still  luwio  i)er- 
tineut  to  in(|uire  whether  the  law  of  niitioiis  furnishes  uny  jaecedent 
opposed  or  hostile  to  the  claim  made  by  the  United  States  of  property  in 
these  animals,  which  are  conceived,  and,  if  the  race  is  to  exist  at  all, 
must  be  born  and  reared,  on  land,  and  which,  altliough  passing  much 
time  oil  the  high  seas,  periodically  return  to,  and,  for  a  time,  abide  upon 
the  terretory  of  the  United  States.  And  tiiey  retusn  to  and  abide  up- 
on tiiat  territory,  under  such  circumstances,  that  the  United  States, 
the  sovereign  and  owner  of  the  land,  and  it  alone,  of  all  other  nations, 
can,  by  the  exercise  of  care,  industry,  ami  self-denial  take  the  increase 
for  the  benetit  of  the  world,  without,  in  any  degree,  diminishing  or 
impairing  the  stock.  If  there  is  no  recorded  luecedeiit  based  ui)on 
actual  dispute  between  nations,  which  would  determine  such  a  case, 
we  may  properly  inquire  whether  there  is  such  an  agreement  among 
civilized  nations,  in  respect  to  the  institution  of  property  and  the 
rules  goverr.ing  the  ac(piisition  of  property,  as  will  .justify  us  in 
adjudging  that  the  i)resent  claim  of  the  United  States  rests  upon 
priaciples  universally  recognized.  If  the  rules  endtodied  in  the  con- 
curring municipal  law  of  the  dillereiit  countries  of  theearth,  and  founded 
in  reason,  justice, and  the  necessities  of  organized  society,  will  sustain 
this  claim,  our  judgment  to  that  efl'ect  will  be  in  accordance  with  the 
law  of  nations;  for  nothing  to  the  contrary  appearing  in  ])()sitive  enact- 
ments, binding  ui)on  this  Tribunal,  it  must  be  assumed  when  dealing 
with  a  question  of  property,  that  tlie  nations  assent  to  such  rules  in 
the  law  of  property  a-  lue  coiiinion  to  the  jurisprudence  of  civilized 
countries.  It  has  been  »vcll  observed  by  Sir  James  Mackintosh,  in  his 
fanums  Discourse  oi;  the,  Law  of  Nature  and  I-iations,  that  tlie  two  in- 
stitutions of  ])roperty  and  marriage  constitute,  preserve  and  iini)rove 
society;  that  ipon  their  gradual  develoiuiient  depends  the  progressive 
civilization  of  mankind;  tiiat  on  them  rests  the  whole  order  of  civil  life; 
thatthedutiesofmen, subjects,  prim  cs, lawgivers,  and Statesareall parts 
.  f  .  ;e  system  of  universal  morality;  and  that  "  the  principle  of  justice, 
deeply  rooted  in  the  nature  and  interest  of  niaii,  ])ervades  the  whole 
system,  and  is  discoverable  in  every  put  of  it,  even  to  its  minutest 
ramilication  in  a  legal  formality,  or  in  the  constiuction  of  an  article  in 
a  treaty."  When,  therefore,  a  Tribunal,  administering  the  Law  of 
Nations,  is  required  to  consider  a  question  of  jn-operty,  it  may  not  dis- 
regard what  the  prih  'plco  of  justice,  right  reason,  and  the  uccossities 


142 


of  society,  evidoiicetl  by  tbe  concurring  municipal  law  of  tlio  world, 
demand  at  its  hands. 

Any  other  view  is,  I  submit,  inadmissible.  The  law  of  self-defense 
is  a  part  of  the  law  of  nations,  not  so  much  because  it  is  declared 
to  be  so  by  legislation  or  treaty,  but  because  it  is  founded  in  prin- 
ciples of  justice  and  right  that  are  recognized  among  all  peoples. 
Murder  and  theft  are  crimes  against  society,  whether  so  declared  by 
statute  or  not,  and  they  would  be  so  regarde<l  by  any  Tribunal  ad- 
ministering the  law  of  nations,  if  its  judgment  depended  upon  its 
estimate  of  those  acts,  not  because  they  are  made  crimes  by  any 
statute  or  convention  binding  upon  the  world,  but  because  all  nnm- 
kind,  in  recognition  of  the  princi])Ies  of  eternal  and  natural  justice, 
implanted  in  man  by  the  Creator,  regard  them  in  that  light.  It  is  said 
that  even  if  there  be  grounds  of  reason  and  justice,  that  is  of  natural 
law,  why  it  miglit  be  proper  and  desirable  that  these  fur  seals  should 
be  held  to  be  tlie  subject  of  property,  such  considerations  are  of  ua 
weight  whatever  in  the  absence  of  the  general  assent  of  nations  that 
they  nniy  be  so  regarded.  Such  an  argument  leads  to  this  strange 
conclusion:  Tiiat  in  tlie  absence  of  any  allirnnitive  assent  of  nations 
to  a  right  decision,  tliat  is,  to  a  decision  confornnible  to  the  principles 
of  sound  reason,  justice,  and  the  necessities  of  mankin<l,  we  must, 
for  the  want  of  such  assent,  make  a  wrong  decision,  that  is,  one 
forbidden  by  sound  reason  and  justice  and  hostile  to  tlie  best  inter- 
ests of  society.  Thus,  according  to  the  argument  presented,  a  Tribunal 
administering  iuternatioiud  law  must,  in  the  absence  of  the  express 
assentof  the  nations,  reject  every  new  atlirmative  proposition,  however 
strongly  supported  by  reason,  justice,  and  morality,  and  thereby 
establish  the  contrary  as  the  rule  that  should  govern  the  condu<;t  of 
nations.  True  wisdom,  indeed,  the  Treaty  and  public  law,  I  sub- 
mit, reciuire  tiuit  this  Tribunal  accept  the  doctrine  that  whatever  is 
demanded  by  right  reason,  justice,  and  morality  has  the  sanction  of 
the  law  of  nations,  unless  it  has  been  otherwise  determined  by  the  gen- 
eral assentof  mankind.  This  was  the  principle  declared  by  Mr,  Justice 
Story,  when  he  said:  "I  think  it  maybe  unequivocally  allirmed  that 
every  doctrine  that  may  be  faii-ly  deducetl  by  correct  reasoning  from 
the  rights  and  duties  of  nations  and  the  nature  of  moral  obligations, 
may  theoreti(;ally  be  said  to  exist  in  the  law  of  nations;  and  un'jss  it 
be  relaxed  or  waived  by  the  consent  of  nations,  which  may  be  evidenced 
by  their  general  [)ractice  and  custom,  it  nnvy  be  enforcol  by  a  cinnt 
of  jnsti(!e  wherever  it  arisen  in  judgment.'  La  Jctinv  Kw/(  aic,  2  .U  ,  j  ..  ^ 
livjjorts,  449, 


I 


143 


Uo  world, 

If-tlefeiise 
(led  ii  red 
I  in  priu- 
l  peoples. 
Liliired  by 
Ijuual  iul- 
ii]>ou  its 
"s  by  any 
i  all  man- 
ill  justice, 
It  is  said 
of  natural 
Js  shonld 
are  of  nf 
tions  that 
s  strange 
of  nations 
principles 

we  must, 
it  is,  one 

•est  inter- 
Tribunal 
e  express 
however 

thereby 

nuluct  of 

w,  I  sub- 

atever  is 

inctiou  of 

,'  tlie  geu- 

r.  Justice 

med  that 

ling  from 

ligations, 

un^iss  it 
videiiced 
y  a  ciuirt 


: 


There  are  rules  governing  the  actiuisition  of  proivorty,  not  always 
sanctioned  by  legislation,  but  yet  common  to  the  jurisprudence  of  all 
countries,  and  whicli  we  may  not  ignore  or  refuse  to  recognize.  I  can- 
not conceive  it  to  be  possible  that  the  Tribunal,  in  deciding  a  question 
of  property  in  anitnals,  found  in  the  high  seas,  may  disregard  the  rules 
of  pro[)C'rty  which  are  imbedded  in  the  concurring  municipal  law  of 
civilized  nations.  That  must  be  deemed  the  law  of  all  to  which  all 
have  assented.  And  so  if  the  Tribunal  shoidd  hold  that  these  fur 
seals  are  the  property  of  tlie  United  States  when  found  in  the  high  seas, 
it  would  thereby  recognize  the  right  of  tliat  country  t^)  protect  theiu 
against  pelagic  sealing,  not  because  that  right  is  secured  by  statute  or 
treaty,  but  because  by  the  universal  judgment  of  nations,  the  owner  of 
property  may  enjploy  for  its  protection  and  preservation  such  means, 
not  forbidden  by  law,  as  may  be  necessary  to  that  end.  It  is  true,  in 
fact,  that  the  recognized  doctrines  as  to  possession,  detention,  right  of 
possession,  and  right  of  property,  as  they  have  been  api)lied  in  cases 
wliich  have  arisen  between  independent  states,  are  derived  from  tlio 
])rinciples  of  natural  law  as  understood  and  as  exitounded  by  states- 
men and  public  jurists. 

While  there  are  wild  animals  whose  nature  and  habits  preclude  the 
possibility  of  their  being  a[>proi)riated  as  property,  except  when  tliey  are 
contined  or  are  otherwise  in  actual  custody,  there  are  others,  vahiable 
to  mankind  and  usually  assigned  to  tliat  class,  which,  by  the  common 
law  of  the  world,  may,  under  given  circumstances,  become  tlie  property 
<>i'  uidu,  without  being  held  in  continuous,  actual  possession. 

.  A«;tentiou  will  tirst  be  given  to  the  Roman  law,  because  Keason,  which 
j^ovorns  the  application  of  the  principles  of  justice  to  particular  cases,  is 
ir,«jlt  "guided  and  fortilied  by  a  constant  reference  to  analogous  cases 
ai'-  *^  I  ihe  written  reason  embodied  in  the  text  of  the  lionian  law,  andin 
the  works  of  commentators  thereui)on,'''  1  rhillimon;  c.  8,  sec.  58. 
The  same  author  observes  that  ''the  Koman  law  may,  in  truth,  be 
said  to  be  the  most  valuable  of  all  aids  to  a  correct  and  full  knowledge 
of  international  jurisprudence,  of  which  it  is  indeed,  historically  speak- 
ing, the  actual  basis."  Again  ;  "liulependeiitly  of  the  historical  value 
of  the  Eo''ian  law  as  explanatory  of  the  terms  and  sense  of  treaties 
:!ud  of  the  language  of  jurists,  its  importance  as  a  repository  of  decisions, 
tlie  spirit  of  which  almos:.  always,  and  the  letter  of  which  very  fre 
(piently,  is  applicable  to  the  controversies  of  independent  States,  can 
scarcely  be  overstated.  Fiom  this  rich  treasury  of  the  i)rinciples  of 
universal  jurisprudence,  it  will  generally  bo  found  that  the  deileieneies 


;  1 


I 


■r. 
II 


144 

of  precedent,  usage,  and  expi ess  international  anthoiit}-  may  be  sup- 
plied. Tliroughout  the  greater  pDi'tion  of  Clu'istendoni  it  presents  to 
each  State  wiiat  may  be  fairly  termed  their  own  consent,  bound  up  in 
the  municipal  Jurisprudence  of  their  own  country;  and  tliis  not  nu'rcly 
to  tiie  imtions  of  Europe,  whose  codes  are  built  on  the  civil  law,  but  to 
the  numerous  colonies  and  totlieindei)endent  tSt.ites  whicli  have  sprung 
from  those  colonies,  and  which  cover  the  globe."  i  Fhilliiuore  sees.  oU 
and  37.  Lord  Stowell  said  that  a  great  pait  of  the  law  of  nations  was 
founded  on  the  civil  law.  The  Maria,  1  Ii<fhinson\s  Adiii.  Rv2>.,  363. 
"A  great  part,  tlien,  of  international  hiw,"  Henry  iSuniner  Maine  says, 
"is  lloman  law  spread  over  Eurojie  by  a  process  exceedingly  like  that 
which  a  few  centuries  earlier  had  caused  other  pcntions  of  llonum  law 
to  lilter  into  the  ini  *  !V-.ti<!es  of  every  Euroitean  legal  system.  *  *  * 
In  a  book  published  sui  irs  ago  on  Ancient  Law,  1  made  tiiis  remark: 

'Setting  aside  the  Treaty  aw  of  Nations,  it  is  surprising  how  large  a 
part  of  the  system  is  made  up  of  pure  lioman  law.  Wherever  there  is 
a  doctrine  of  the  Uoman  jurisconsults,  allirmed  by  thejn  to  be  in  har- 
mony with  the  jius  (iciUiuiii  [natural  lawj,  the  Publicists  have  found  a 
reason  for  borrowing  it,  however  plaiidy  it  may  bear  the  mark  of  a 
distinctive  Uoman  origin.'  *  *  *  The  greatest  function  of  the  law 
of  nature  was  discharged  la  giving  birth  to  modern  international  law. 
*  *  *  The  ini[nession  that  the  Koniau  law  sustained  a  system  of 
what  would  now  be  called  international  law,  and  that  this  system  was 
identical  with  the  law  of  nature,  had  undoubtedly  much  iulluence  in 
causing  the  rules  of  what  the  Uoinans  called  natural  law  to  be  engrafted 
on  and  identilied  with  the  modern  law  of  nations  "  Maine's  Interna- 
tional Law,  i)p.  13, 17,  38.  Van  Leeuwen:  "The  lioman  law  is  at  the 
present  day  almost  every  wliere,  and  by  every  nation  upheld  as  a  com- 
moai  law  of  nations,  and  adoi)ted  in  cases  where  particular  laws  or 
customs  fail."  Uoman- Puteh  Law,  Vol.  1,  Bk.  1,  (Jh.  1,  see.  11,  p.  3, 
Ed.  ISSl,  Kotze's  Translation.  Ami,  "it  will  generally  be  found,"  says 
llalleek,  "that  the  dertciencies  of  precedent,  usage,  and  express  inter- 
national aiUhority  may  be  supplied  from  the  rich  treasury  of  the  lloman 
civil  law.  Indeed,  tiie  greater  number  of  controversies  between  States 
would  find  a  Just  solution  in  this  comprehensive  system  of  practical 
equity,  which  furnishes  principles  of  universal  Jurisprudence  iipplicablo 
alike  to  individuals  and  to  States."  1  Jlallcolc's  International  Laic,  c. 
a,  sec.  21. 

These  authorities  justify  recourse  to  the  T{on)an  law,  as  exponnded 
by  jurists  and  commeutators^  for  those  princi[>les  of  equity,  right, 
and  justice  that  uo'istitute  a  part  of  the  law  of  nations. 


be  sup- 

iseiits  to 
id  up  ill 
t  nu'icly 
V,  but  to 
cspruiiy; 
sees.  cjG 
ious  WHS 
i'(;ji>.,  o(Jo. 
iue  says, 
like  that 

)iiiau  law 

•    «    « 

j  remark: 
w  laif^e  a 
i-  there  is 
e  in  har- 
d  Ibuud  a 
nark  of  a 
f  the  law 
oual  law. 
system  of 
stem  was 
lueiH-e  iu 
bii  grafted 

Inicrna- 
|is  at  the 
as  a  ci>m- 

laws  or 

|iul,"  says 
liss  inter- 
|ie  Itomau 
bu  States 
I  practical 
[tplicablo 
1/  Law,  c. 

[pounded 


145 

It  is  said  iu  the  Institutes  of  Justin iau: 

"11.  Thin.i(s  become'  the  property  of  individuals  lu  many  ways; 
for  we  obtain  the  ownership  of  some  by  tlie  iiaturiil  law,  wliich,  as  we 
have  said,  is  styled  jus  gentium;  aud  of  some  by  the  civil  law.  It  is 
most  couvenic-.t,  then,  to  commence  with  the  more  ancient  law,  and  it  is 
clear  that  tlie  more  ancient  is  the  uatural  law,  since  tlie  nature  of  tliinj,'s 
broujiiit  it  into  existence  sinuillaneously  wMth  the  humnn  race  itself; 
whilst  civil  laws  bejviiu  to  exist  wlicu  states  were  first  founded,  maj^is- 
tratcs  appointed,  and  laws  written.  12.  Wild  beasts,  therefore,  and 
birds  aud  fishes,  that  is  to  say,  all  animals  that  live  on  the  earth,  iu 
in  the  sea  or  in  the  air,*as  soon  as  they  are  cauj^jht  by  any  one,  become 
his  at  once  by  virtue  of  the  law  of  nations.  For  whatever  has  pi-evi- 
ously  belonjred  to  no  one  is  granted  by  natural  reason  to  the  first 
taker.  Nc  does  it  nnitter  whether  the  man  catches  the  wild  beast  or 
bird  on  his  own  ground  or  on  another's;  althojigh  a  person  puri)osing 
to  enter  on  another's  land  for  the  purpose  of  hunting  or  fowling  may, 
of  course,  be  prohibited  from  entering  by  the  owner  if  he  perceive  him. 
Whatever,  then,  you  have  caught  of  this  kind  is  regarded  as  yours,  so 
long  as  it  is  kept  in  your  custody;  but  when  it  has  escaped  from  your 
custody  aud  reverted  to  its  natural  freedom  it  ceases  to  be  yours,  and 
again  belongs  to  the  first  taker.  And  it  is  considered  to  have  recov- 
ered its  natural  freedom  when  it  has  either  escaped  out  of  your  sight, 
or  is  still  in  sight,  but  so  situated  that  its  pursuit  is  dinicult.  1.'}.  It 
has  been  debated  whether  a  wild  beast  is  to  be  considered  j'ours  at 
otuie,  if  wounded  iu  such  a  manner  as  to  be  caitabh>  of  cajiture;  and 
souje  have  held  that  it  is  yours  at  once,  and  is  to  be  regarded  as  yours 
so  h)ng  as  y(Ui  are  pursuing  it;  but  that  if  you  desist  from  pur-aiit  it 
ceases  to  be  yours  aud  again  beh)ngs  to  the  first  taker.  Others  have 
thought  that  it  is  not  yours  until  you  have  actually  caught  it.  And 
we  indorse  the  latter  opinion,  because  many  things  may  happen  to  pre- 
vent your  catching  it.  11.  I'.ees,  too,  are  naturally  wild.  Therefore, 
any  bees  which  settle  u[)ou  your  tree  are  no  more  consideied  y^urs,  until 
you  have  hived  them,  than  birds  which  have  made  their  nest  iu  that 
tree  of  yours;  it',  therefore,  any  one  else  hives  them  ho  will  be  their 
owner.  The  honeycomb,  too,  which  they  have  madc^,  anyone  nniy  take 
away.  Ibit  undoubtedly  if  you  see  a  person  entering  upon  your  land 
before  anything  has  beeu  removed  {in  infff/ra  re)  you  uniy  legally  for- 
bid him  to  enter.  A  swarm  which  has  flown  from  your  hive  is  consid- 
ered to  be  yours,  so  long  as  it  is  iu  your  sight  and  its  pursuit  uoj; 


1141)2- 


-10 


t 


14G 

(lifllcult;  otherwise  it  belongs  to  llie  liist  taker.  15.  Peacocks  aiul 
pigeons  are  naturally  wild,  and  it  is  not  jnat(irial  that  they  get  into 
a  habit  of  ilying  away  and  coining  back;  for  bees  do  the  same,  and 
their  nature  is  admitted  to  be  wiM.  Some  people,  too,  have  deer  so 
tamed  that  they  habitually  go  into  the  woods  and  come  home  again, 
and  yet  no  one  denies  that  these  animals  also  are  naturally  wild.  Still, 
with  regard  to  animals  of  this  sort,  irhich  r/o  and  come  rcfjularly,  ihe 
ride  has  been  adopted,  that  they  are  regarded  as  being  yoxirn  so  long  as 
they  have  the  intent  of  returning;  for  if  they  cease  to  have  that 
intent  they  also  cease  to  be  yours  and  become  the])roperty  of  the  first 
taker.  And  they  are  held  to  have  lost  the  inj;ent  of  returning  Avhen 
they  cease  from  the  habit  of  leturning."  Booh  II,  Title  I,  Ahdy  tSc 
Walker's  ed.,  pp.  82,  83,  8 J. 
To  the  same  ellt'ct  is  Gains,  who,  in  his  Commentaries,  says: 
"00.  ]iut  not  only  thost;  things  which  bei^ome  ours  by  delivery  are 
acipiired  by  us  on  natural  principles,  but  also  those  which  we  acqrire 
by  occui)ation,  on  the  ground  that  they  previously  belonged  to  no  one; 
of  which  class  are  all  things  caught  on  land,  in  the  sea,  or  in  the  air. 

07.  If,  therefore,  we  have  caught  a  wild  beast,  or  a  bird,  or  a  fish,  any- 
thing we  have  so  caught  at  once  becomes  ours,  and  is  regarded  as 
being  ours  so  long  as  it  is  kept  in  our  custody.  But  when  it  has  escaped 
from  our  custody  and  returned  into  its  natural  liberty,  it  again  becomes 
the  [)r()perty  of  the  fir;-'*"  taker,  because  it  ceases  to  be  our-',  And  it  is 
considered  to  rc(;over  its  natural  liberty  when  it  has  either  gone  out  of 
our  sight  or,  altliough  it  be  still  in  our  sight,  yet  its  pursuit  is  diHicult. 

08.  AVith  regard  to  those  animals  which  are  accustomed  to  go  and 
return  habitually,  as  doves,  and  bees,  and  deer,  which  are  in  the  habit 
of  ^oing  into  the  woods  and  coming  back  again,  w^e  have  this  rule 
handed  down :  that  if  they  cease  to  have  the  intent  of  returning  they 
also  cease  to  be  ours,  and  become  the  propeity  of  the  first  taker,  and 
they  are  considered  to  cease  to  have  the  intent  of  returning  wiien  they 
have  abandoned  the  habit  of  returning."  Blc.  II,  Sees  66,  67,  and  68. 
Ahdy  tO  Walker's  ed,  p.  08.  See,  also,  Iltinter'S  lioman  Law,  2d  ed.,p. 
316. 

Van  Leenwen,  in  his  Commentaries  on  Eoinan-Dutch  Law,  enumer- 
ates among  res  nullius  those  which,  "although  not  belonging  to  any- 
body, may  yet  be  brought  under  the  dominion  or  possession  of  another;" 
and  while  stating  that  there  are  some  wild  animals,  "  as  birds,  fish, 
and  beasts  inhabiting  the  sea  or  other  waters,  tiie  air,  or  the  earth," 
which  "JiKiy,  according  to  the  origiiuil  institution  of  Jaws,  b^  cuptuml 


147 


•ocks  and 
:  j>ot  into 
same,  and 
ve  deer  so 
)n»e  again, 
Ud.    Still, 
nihirly,  the 
so  long  ax 
have  that 
of  the  first 
ning  Avhen 
I,  Ahdy  tfe 

lys: 

lei  i  very  are 
\vc  ac<ii  iro 
I  to  no  one; 
:  in  the  air. 
a  fish,  any- 
egarded  as 
has  escaped 
ivin  becomes 
And  it  is 
gone  oiit  of 
t  is  dillicult. 
7  to  go   and 
n  the  habit 
A-e  this  rule 
|urning  they 
taker,  and 
when  they 
67,  and  08. 
\iv,  2d  ed.,  p. 

iw,  enunier- 
Ling  to  any- 
^f  another;" 
birds,  fish, 
the  earth," 
)e  uaptnmJ 


and  owned  by  cvoryono  without  distinction,"  ho  says,  in  respect  to 
otluHs:  "For  tlie  animals  that  are  avcustomod  to  go  out  and  return,  as 
bees,  pigeons,  ducks, gciesc,  and  thclike,  although  wild  by  nature,  and 
frequently  roaming  very  far,  are  considered  to  remain  our  propcriij,  and 
may  not  be  acijuired  by  anybody  unless  they  have  continued  abumly 
and  have  been  abandoned  by  us  icilhout  hope  of  their  returning.''^  Blc.  4?, 
chap.  3. 

liowyer,  in  his  treatise  on  Modern  Civil  Law,  while  stating  the  gen- 
eral rule  to  be  that  wild  aninnils,  birds,  and  fish,  and  all  animals  that  are 
jn-oduced  in  the  sea,  the  heavens,  and  the  earth  beciome  the  property, 
by  natural  law,  of  whoever  takes  possession  of  them,  the  reason  being 
t  at  whatever  is  tlie  property  of  no  man  becomes,  by  natural  reason, 
the  property  of  whoever  occupies  it,  says:  "Dec^s,  also,  are  of  a  wild 
nature,  and  therefore*,  they  no  more  become  the  property  of  the  owner 
of  the  soil  by  swarming  in  his  trees  than  do  the  birds  wliicli  build  in 
tliem;  and  they  are  not  his  unless  he  inclose  tiiem  in  a  hive.  Conse- 
quently, whoever  hives  them  nnikes  them  his  own.  And  while  tiiey 
are  wild  anyone  may  cut  olf  the  honeycondjs,  thougli  the  owner  of  the 
land  may  prevent  this  by  warning  off  trespassers.  Aiul  a  swarm  (lying 
from  a  hive  belong  to  the  owner  of  the  hive  so  long  as  it  is  witliin  liis 
sight,  but  otherwise  it  is  the  property  of  whoever  takes  possession  of 
it.  With  regard  to  creatures  which  have  the  habit  of  going  and  return- 
ing, such  as  pigeons,  they  remain  the  property  of  those  to  whom  they 
belong  .so  long  as  the;/  retain  the  animus  revcrtendi,  or  disposition  to 
return.  But  when  they  lose  that  disposition  they  be-onie  the  property 
of  whomsoever  secures  them.  And  the^'  nnist  be  held  to  have  lost  the 
animus  revertendi  as  soon  as  they  have  lost  the  habit  of  returning," 
p.  73. 

It  will  not  be  (inestioned  that  these  authorities  show  tluit,  according 
to  the  Uoman  law.  and  under  certain  circumstances,  jiropcrty  may  exist 
in  some  animals  admittedly  fercv  naturw.  What  tiiose  circnmstances 
are  will  be  presently  considered. 

The  law  common  to  both  of  the  nations  here  roprosonted,  except 
where  some  statute  has  intervened  and  established  a  dilVerent  rule,  is 
in  harmony  with  the  rules  established  in  the  Roman  law.  JJracton,  after 
showing  that  (hnniniou  over  things  by  mitural  right  or  by  the  right  of 
nations  may  be  ac([uired,  or  h)st,  in  various  ways,  says:  "Occupation 
also  includes  shutting  up,  as  in  the  case  of  bees,  which  are  wild  by 
luiture,  for  if  they  should  have  settled  on  my  tree  they  would  not  be  any 
the  nmre  mine,  tin  til  I  have  shut  thenj  up  in  a  Live,  than  birds  wbicU 


If  '  i 


148 

liiivi!  niiide  a  nest  in  my  tree,  and  tlKTctbrc  if  auollier  ixm'Som  sliall  sliufc 
them  ui>,  lie  will  have  the  domiiiioii  over  tliiMii.  A  swarm,  also,  which 
has  llowii  away  out  of  my  iiive,  is  so  long  understood  to  be  mine  as 
lonj;- as  it  is  in  my  si}j;ht,  and  the  overtaking  of  it  is  not  imi)ossil)le, 
otherwise  they  belong  to  the  first  taker;  but  if  a  i)erson  sliall 
ea[)(iiie  them,  lie  does  not  make  tlicm  his  own  if  ho  shall  know 
that  they  ai'e  another's,  but  lie  eoinuiits  a  theft  unless  lie  has  the 
intention  to  lestore  them.  And  these  tilings  ai(i  true,  unless  some- 
times from  (iustoni  in  some  parts  the  practice-  is  otlunwise.  What 
has  been  said  above  ai)i)lies  to  animals  which  have  remained  at  all 
times  wild;  and  if  wild  animals  have  been  tamed,  and  they  hy  habit 
go  out  and  return,  fly  away,  and  fly  had:,  .such  as  deer,  siran,  sea 
J'owIn,  and,  duve>!,  and  sueh  Ulic,  another  rule  has  been  approved,  that 
they  are  so  long  <'onsidercd  as  ours  an  lony  as  they  hare  the  disposition 
to  return;  for  if  they  have  no  disposition  to  rel  urn  they  eeasji  to  be 
(mrs.  r>ut  they  seem  to  cease  to  have  tiie  disijositiou  to  return 
when  they  have  abandoned  the  habit  of  returning;  a-nd  the  same  is 
said  of  fowls  and  geese  which  liave  become  wild  after  being  tamed." 
Braeton,  hi:  L\  eh.  1. 

Comyu  observes  that  although  in  things  ferw  naturw,  no  one  can 
have  an  abs(»lute  property,  as  in  deer  and  conies,  in  hawks,  do^es, 
herons,  pheasants,  partridges  or  other  fowls  at  large  and  not 
reclaimc'l.  or  in  lish  at  large  in  the  water,  yet  a  niiui  may  have  "a 
([ualilied  or  possessory  property  in  tliem,"  as  in  deer,  iiheasants,  ])ar- 
tiidges,  or  hawks,  tamed  or  reclaimed,  or  (h)ves  in  a  dovecot,  or  young 
herons  in  tlieir  nest,  or  lish  in  a  tank.  "  IWit,"  ho  says,  "  if  deer,  fowls^ 
etc.,  tame  or  reclainuul,  attain  their  natural  liberty,  and  have  no  incii- 
vdlion  to  return,  the  pro[terty  shall  be  h)st,"  implying  that  the  right 
of  property  is  not  lost,  so  long  as  the  animal  or  fowl  recdaimed  or 
tamed,  has,  wlieu  leaving  the  premises  of  the  owner,  the  incliuatiou  to 
return.     .Diycst,  Tit.  Bieiis.,  F.  Vol. :?,  /».  7.95. 

Ill  Bac(ui's  Abridgment  it  is  said:  "The  wild  animals,  such  as  deer, 
iiares,  foxes,  etc.,  are  understood  to  be  those  which  by  reason  of  their 
swiftness  or  llerccness  tly  the  dominion  of  man,  and  in  these  no  person 
can  have  property,  unless  they  be  tamed  or  reclaimed  by  him;  and  as 
property  is  the  power  that  a  man  hath  over  any  other  thintj  for  his  own 
use,  and  the  ability  that  he  has  t'>  apply  it  to  the  sustentation  of  his  lieing, 
when  the  power  ceases  his  property  is  lost;  and  by  consequence  an 
animal  of  this  kind,  which,  after  any  seizure,  escapes  into  the  wild 
common  of  nature  and  assorts  its  own  liberty  by  its  swiftness,  la  no 


140 


iliall  shut 
so,  whicli 
I  mine  iis 
ipossibU', 
sou  shall 
all    know 

lias  tlie 
CSS  souie- 
}.  What 
kmI  at  all 
/  hrj  habit 
sir  an,  sea 
ovcd,  that 
illnposifion 
'.a so  to  he 

to  letuiii 
M\  same  is 
MX  tamed." 

0  one  can 

ks,  (loves, 
and    not 

1  liave  "a 
saiits,  ])ar- 
l,  oi-youii;;' 

OCT,  towiSj 
(•6'  /<o  i/(c/i- 
tlie  rij;ht 
hiimed  or 
liuation  to 

^h  as  deer, 
|)Ti  of  then- 
no  ])ersou 
lin;  and  as 
\'or  his  own 
hi.s  being, 
luence  an 
i>  the  Avild 
liess,  ia  no 


nmre  mine  than  any  croattiro  in  the  Indies,  hocanse  I  have  it  no  lonj:fer 
in  my  power  or  disposal,  llonce  it  ai)pears  that  by  the  <'<»niinon  law 
every  man  has  an  eipial  rij^ht  to  sueh  ereatnres  as  were  not  naturally 
under  the  power  of  man,  and  that  the  mere  ('ai)ture  or  seizure  created 
a  i)roperty  in  them."  IJut,  says  the  author:  "JJy  takinj;'  and  taminjj 
them  they  bclonj;  to  the  owner,  as  do  all  the  other  tanu;  animals,  so 
lon;^  as  they  continue  in  this  <!ondition;  that  is,  <f«  long  an  (he  1/  can  be 
considered  to  haec  the  mind  of  returning  to  their  masters;  for  while  theg 
appear  to  he  in  this  state  thri/  are  plainlg  the  oivner\s  and  ought  not  to  be 
violated;  but  when  they  foi'sake  the  houses  and  Imbitations  of  nu-n,  and 
betake  themselves  to  the  wood,  they  aie  then  the  property  of  any  man." 
Bouvier's  Ed.,  Title,  Game,  Vol.  i,  pp.  d31,  133. 

Blaekstone  says: 

"II.  Other  aninnUs  that  are  not  of  a  tame  and  domestic  nature  are 
either  not  the  objeets  of  property  at  all,  or  else  full  under  our  other 
division,  namely,  that  of  qualKied,  limited,  or  special  property,  whiidi 
is  such  as  is  not  in  its  nature  permanent,  but  may  sometimes  subsist 
and  at  other  times  not  subsist.  In  discuss!  iij;' whieh  subject,  I  shall, 
in  the  first  place,  show  how  this  species  of  property  may  subsist  in 
such  animals  as  are  ferie  natura;  or  of  a  wild  nature,  and  then  how  it 
may  subsist  in  any  other  thinys  when  urider  ]Kuti(;u1ar  circiiiiisfanees. 

"  First,  then,  a  man  may  be  invested  with  a  qimlilied,  but  not  nu 
absolute  p''operty,  in  all  creatures  tliat  are  fera;  natnric,  either  j^er 
industriam,  propter  impotentiam,  or  propter  privilcgium. 

"1.  A  (pialilied  property  may  subsist  in  animals /mc*  naturw,  per 
industriam  hominis,  by  a  nnni's  reclaiming,  and  making  them  tam  ^  by 
art,  indnstry,  and  education,  or  by  so  conliniu},'  them  within  his  own 
immediate  power  that  they  can  not  escape  and  use  their  natural  liberty. 
And  under  this  head  some  writers  have  ranked  all  the  former  sjx'cies 
of  animals  we  have  mentioned,  ai)preliendinp,'  none  to  be  oiiginully  and 
naturally  tame,  but  only  made  so  by  art  and  custom,  as  horses,  swine, 
and  other  cattle,  which,  if  originally  left  to  themselves,  would  have 
chosen  to  rove  up  and  down,  seeking  their  food  at  large,  and  are  only 
made  domestic  by  use  and  fam  liarity,  and  are,  therefore,  say  they, 
called  mttnsueta,  quasi  maniii  assueta.  Uut,  however  well  this  notion 
may  be  founded,  abstractly  considered,  our  law  apprehends  the  most 
obvious  distinctions  to  be  between  such  animals  as  we  generallj  see 
tame,  and  are,  therefore,  seldom,  if  ever,  found  wandering  at  large, 
which  it  calls  domitm  natura;  and  such  creatures  as  are  usually  found 
at  liberty,  which  are  therefore  supposed  to  be  more  emphatically  forw 


150 


I'M 

I 


naiura;  tlioucfli  it  may  liiip|)(Mi  tliat  tlio,  latter  sliall  l>o  souictimos  lamod 
iUMl  c.oiiliiMMl  by  tlio  art  and  iiidiistiy  of  man — siirli  as  art'  dt'nr  in  a 
park,  liai'L'H  or  rabbits  in  an  inclosed  warren,  doves  in  a  dove  house, 
pheasants  or  partridji'es  in  a  mew,  hawks  that  are  fed  and  commanded 
by  their  <nvner,  ami  lish  in  a  private  pond  or  in  truidcs.  These  are  no 
]onj;'er  the  property  ol'nnin  than  while  they  continue  in  his  keepinj;  or 
actual  possession;  but  ifat any  time  tlu'y  regain  their  imtnral  lil)erty  his 
property  instantly  ceases,  uiiIch.s  they  have  animum  rcvcrtcufli,  ivhich 
is  only  to  be  known  by  their  usual  eustom  of  returuiuff.  A  maxini 
which  is  borrowed  from  the  civil  law,  revertcndi  anhmim  videutur  desi- 
nere  habere  tune,  cum  rererfendl  consuetudinem  descruerint.  The  law, 
therefore,  extends  this  ])osscssion  further  than  the  mere  manual  occu- 
pation; ibr  my  tame  hawk,  that  is  pursuiuij;"  his  (]narry  in  my  presence, 
though  he  is  at  liberty  to  {;o  where  he  i)leases,  is  nevertheless  my  prop- 
erty, lor  he  has  animum  rerertendi.  So  are  my  pij'eons  that  are  tiyiny 
at  a  distance  iVom  their  home  (especially  of  the  carrier  kind),  and  like- 
wise the  <leer  that  is  chased  out  of  my  park  or  forest,  and  is  instantly 
pursued  by  the  keeper  or  forester;  all  which  remain  still  in  my  posses- 
sion, and  1  still  preserve  my  qualitled  i)roperty  in  them.  *  *  *  Bees 
also  are  ferw  naturw,  but  when  hived  and  reclainuMl,  a  man  may  have 
aqualilied  property  in  tliein  by  the  law  of  nature,  as  well  as  by  the 
civil  law.  *  *  »  In  all  these  creatures,  reclaimed  from  the  wildnesa 
of  their  nature,  the  property  is  not  absolnte,  but  defeasible;  a  i)roperty 
that  may  be  destroyed  if  they  resume  their  ancient  wilduess,  and  are 
found  at  large."    Bk.  2,  p.  3'Jl. 

Kent,  in  his  Conunentaries,  says: 

"  Animals /6'/vf  naturw,  so  lon<>-  as  thoy  are  reclaimed  by  the  art  and 
l>ower  of  man,  are  also  the  subject  of  a  qualilied  property;  but  when 
they  are  abandoned,  or  escape,  and  return  to  tlunr  natural  liberty  and 
ferocity,  witliout  the  animus  reverteudi,  the  pr()i)erty  in  them  ceases. 
While  this  qualilied  property  continues,  it  is  as  nuu;h  under  the  pro- 
tection of  law  as  any  other  property,  and  every  invasion  of  it  is 
redressed  in  the  same  manner.  Tlie  dinic.ulty  of  ascertaining-  with  pre- 
<;ision  the  ai^plieatiou  of  the  law  arises  from  the  want  of  some  (;ertain 
deteiiuinate  standard  or  rule  oy  which  to  determine  when  an  aninuil 
is/oYf,  vet  domitiv  natura:  If  an  animal  belongs  to  the  class  of  tame 
animals,  as,  for  instance,  to  the  (;lass  of  horses,  sheep,  or  (sattle,  he  is 
then  a  subject  clearly  of  absolute  property;  but  if  he  belongs  to  the 
class  of  animals  which  are  wild  by  nature,  and  owe  all  their  temporary 


151 


nostiunod 
deer  ill  11 
»vc  lions*', 
HiuitaiMlod 
leso  ivi'c  iK» 
keopiuf?  or 
lilK'ity  Ilia 
n<H,  n-liich 
A  maxim 
hutur  (lesi- 
Tlio  law, 
nual  occu- 
y  presence, 
is  my  prop- 
:  arc  Hyiiij^- 
I),  and  lilvc- 
s  iiKstantly 
my  posses- 
*     *    lices 
li  may  liave 
as  l)y  the 
le  wilduess 
a  i)roperty 
;ss,  and  are 


le  art  and 
but  when 
beity  and 
icm  ceases, 
r  the  pro- 
)u  of  it  is 
;•  with  prc- 
mc  cei'tain 
an  aiiinnil 
ss  of  tame 
attle,  lie  is 
igs  to  the 
temporary 


dof'ility  to  tlie  disf'i])Iiiie  of  man,  sn<;h  as  deer,  fish,  and  several  kin«i 
of  fowl,  tli(!n  the  animal  is  a  s'  '.tject  of  qualifu'd  ])roperty,  and  which 
continues  so  ionj;'  oidy  as  tln^  tannMiess  and  dominion  remain."  Kefer- 
rinfjf  to  the  dillcuence  of  opinion  amon,^  naturalists  and  writers,  as  to 
wh(!ther  all  animals  were  ori;,nnally  tame,  and  owed  tlnsir  wiidness  or 
ferocity  t()  the  violence,  of  man,  the  author  says:  "The  common  law  has 
wisely  avoided  all  perplexin^j;  (juestions  and  reiinements  of  this  kind, 
and  has  adopted  the  test  laid  down  l)y  I'uH'cndorf  (Laws  of  Nature  and 
Nations,  l>k.  1,  0.  0,  Sec.  5),  by  referrinj,'  the  question  whether  the 
animal  bo  wihl  or  tamo  to  our  knowledyo  of.  hia  habits  derived  from 
fact  ami  experience."    3  KenVa  Comm.,  318. 

Has  there  been  any  departure  from  these  principles  in  the  judicial 
tribunals  of  Great  IJritain  or  the  United  States?  No  case  was  cited  in 
argument  showing  tliat  animals  ferw  iiaturw  could  not,  under  any 
circumstances,  become  the  subject  of  property.  On  the  contrary,  our 
attention  has  been  called  to  cases  distinctly  pnuiceding  upon  the 
ground  that  the  inquiry  wliether  partirular  aninuils,  naturally  wild, 
were  to  be  regarded  as  pr(q)erty,  depended  upon  a  consideration  of 
their  nature  and  habits,  and  the  <'xtent  to  which  nian,  by  acting  njion 
their  natural  instincts  or  disposition,  an<l  by  care  and  watchfulness, 
has  established  an  iiulustry  in  respect  to  them,  and  induced  them  to 
remain  so  far  under  his  control  or  power,  as  to  permit  him,  by  means  of 
such  control  or  i)ower  to  obtain  the  benefit  of  their  increase,  without 
injuring  the  stock.  This  is  illustrated  by  ])<ivie,s  vs.  Poivcll,  Willes  liep., 
40,  where  the  principal  question  was  wliether  deer,  in  a  park  of  000  acres, 
which  did  not  conline  them  so  they  could  be  taken  at  pleasure,  were  dis- 
trainable  for  rent.  They  were  not  in  possession,  by  actual  confinement, 
and  coidd  only  have  been  taken  by  shooting,  or  with  dogs.  The  case  w<'nt 
oft' upon  the  pleadings,  but  Ciiief  Justice  Willes,  among  other  tilings, 
said:  "  It  is  expressly  stated  in  Bro.  Ahr.  tit,  '  Property,'  1 1.  ^  1,  and 
agreed  in  all  the  books,  that  if  deer  or  any  other  things  fcrw  natut'dc 
become  tame  a  man  may  have  a  property  in  them.  *  *  *  Upon  a 
supposition,  therefore,  which  I  do  not  admit  to  be  the  law  now,  that  a 
man  can  have  no  property  in  any  but  tame  deer,  these  must  bo  taken 
to  be  tame  deer,  because  it  is  admitted  tliat  the  plaintiffhad  a  property 
in  them.  *  *  *  Fourth.  The  last  argument,  drawn  ah  inusitato, 
though  generally  a  very  good  one,  does  not  hold  in  the  present  case. 
When  the  nature  of  things  changes,  the  rules  of  law  must  change  too. 


; 


m 


;4 


152 

When  it  was  lioMoji  tliiit  door  wctu?  not,  distriiiiialile,  it  was  bocanso 
tlioy  were  kept  prinitipally  for  pleasure  and  not  for  profit,  and  were  not 
Kold  and  turned  into  money  as  they  are  now.  Dot  now  tliey  are  bectonie 
as  nineh  a  sort  of  husbandry  as  liorsea,  cows,  sheep,  or  any  other  cattle. 
Whenever  thoy  are  so,  and  it  is  universally  known,  it  would  be  ridic- 
ulous to  say  tliit  when  they  are  k<'i)t  merely  for  profit  they  are  not  dis- 
ti'ainable  asotiier  cattle,  tliouj^h  it  has  been  holdcn  that  they  were  not 
so  when  they  were  kbpt  only  for  ])lcasuro.  The  rules  concerniiiff  per- 
sonal eslatcs,  which  were  laid  down  wluui  personal  estates  were  but 
small  ill  proportion  to  lands,  anuiuito  varied,  both  in  courts  o'  law  and 
equity,  now  that  personal  estates  are  so  nuicli  increased  and  become  so 
considerable  a  part  of  tiie  property  of  this  kinjxdom  " 

The  cas:'  of  jUorf/nn,  etc.,  E.vceutora  of  Ahcrgavenmj  vs.  WiUinms,  Earl 
of  Aherfiavcnny  (.V  (l  B.,  7(18),  has  a  distinct  bearing  on  some  aspects 
of  the  quoiti'»n  under  coiisideration.  Th  it  was  an  action  of  trover 
to  recover  damaj>'cs  for  the  conversion  of  deer,  a  considerable  number 
of  which  had  the  range  of  a  park,  cionsisting  of  upwards  of  1,1(H>  acres 
of  land,  and,  in  many  parts,  of  a  very  wild  and  rough  description. 
Some  of  thj  deer  were  described  by  witnesses  as  tame,  others  as  wild, 
nu^aning  thereby,  as  the  (lourt  said,  that  some  werelessshy  and  tiinii' 
than  others.  The  case  appeared  to  have  been  tried  ujwu  the  issue.", 
whether  the  deer  were  in  what  was  called  a  legal  park,  and  whether, 
in  view  of  the  state  and  condition  of  the  animals,  the  nature  of  the 
piace  where  they  were  kept,  and  the  mode  in  which  they  had  been 
treated,  they  could  be  regaided  as  tamed  or  reclaimed.  The  jury 
found  that  the  i)ark  had  all  the  incidents  of  a  legal  park,  and  that  the 
animals  had  been  originally  wild,  but  had  been  reclaimed.  Upon  the 
hearing  of  a  rule  nisi  for  a  new  trial  before  Lord  Chief  Justice  Wilde 
and  Justices  Maule,  Coltman,  andOresswel!,  the  court,  referring  to  the 
objection  that  the  jury  had  been  misdirected,  said:  ''That  it  was 
proper  to  leave  the  question  to  the  jury  in  the  terms  in  whicdi  the  issue 
isexpiessly  joined  can  uot  be  disputed,  and  the  direction  that  that 
question  must  be  determined  hi/  referring  to  the  pUtce  in  which  the 
deer  icerc  hept,  to  the  nature  and  habits  of  the  animals,  and  to  the 
mode  in  which  theij  were  treated,  appears  to  the  court  to  be  a 
correct  direction;  and  it  seems  difficult  to  ascertain  by  what  other 
means  the  question  slnmld  be  determined,  whether  the  evidence  in  the 
case  was  such  as  to  warrant  a  conclusi<m  that  the  deer  were  tamed  and 
reclaimed.    The  court  is,  therefore,  of  opinion  that  the  rule  can  uot  be 


it'!! 


153 


)ocansp 
•ere  not 
become 
I'  cattle. 
)0  ri  (lie- 
not  (lis- 
s'eie  not 
iiij;  per- 
rere  but 
law  and 
Liconie  so 

m.v,  J'ldrl 

;  aspects 

i)f  trover 
number 

100  a(aes 

seription. 

s  as  wild, 

vnd  tinii' 

10  lssue^ , 
whetlier, 

le  of  the 
lad  been 

The  jury 
tliat  the 
pon  the 

Ice  Wilde 
ing  to  the 
tit  it  was 
the  issue 
tliat  that 
which  the 
nil  to  the 
to  be  a 
lat  other  ' 
ice  in  the 
lamed  and 
an  not  be 


supported  on  the  jjrouiid  of  mi>..lire(li(in.  It  is  not  contcnibMl  that 
there  w  as  no  evidence  lit  to  be  suliMiilted  lo  tl;e  jury,  ami  that,  tlierelor*', 
the- plain til'l'oufjht  to  luive  been  nonsuited;  l)Mt  it  is  said  that  the  \\eij;lit 
of  ovidence  was  a;iainst  the  verdiet.  in  ciiiisideiin;^'  whether  the  evi- 
dence warranted  the  verdi(!t  upon  the  issue,  whether  the  deer  were 
tamed  (U*  reclainu'd,  the  observations  made  by  l-ord  Chicf.Jusliee  Willes 
in  the  eas(!  of  Ihirics  \s.  /*o/(77/,  nre  d<'.  <'rving  of  attention.  The  (lif- 
ference  in  re<;ard  i(t  th(^  mode  and  object  of  kee[>ln};  deei'  in  mod(>rn 
times  from  that  which  anciently  prevailed,  as  pointed  out  by  liord  (Miief 
.lust  ice  Willes,  can  not  be  ov(Mlo(»ked.  Jt  is  truly  stated  that  ornament 
and  profit  are  tin;  sole  obj(M!ts  for  which  deer  are  now  ordinarily  kept, 
whether  in  ancient  le^^'al  parks,  or  in  modern  inelosures  so  culled;  the 
instances  beinj:;'  very  rare  in  which  deer  in  such  places  aieke])tand  used 
for  sport;  indeed,  their  wlnde  mana};ement  dilVeriu};' very  little,  if  at  all, 
from  that  of  sheep,  or  of  any  other  animals  kept  for  jjiolit.  And  in  this 
case,  the  evidence  before  adverted  to  was  that  the  deer  were  ic^-ularly 
fed  in  the  winter,  and  docs  with  young  were  watched;  the  fawns  taken 
as  soon  as  dropped,  and  marked;  selections  from  the  herd  nmde  from 
time  to  time,  fattened  in  places  prepared  for  them,  and  afterwards  sold 
or  consumed,  with  no  diiTerencc  of  circumstance  than  what  attached,  as 
l.iefoie  stated,  to  animals  kept  for  prollt  and  food.  As  to  some  being 
wild  ami  some  tame,  as  it  is  said,  individiml  animals  no  doubt  dilfered, 
as  individuals  in  almost  every  lace  of  animals  are  Ibund,  under  any 
circumstances,  to  diifer  in  tiie  degre(U)f  tameness  that  behmgs  to  them 

• 

Of  deer  kept  in  stalls,  some  would  be  found  tnineand  gentle,  and  others 
(juite  irieclaimable,  in  the  sense  of  temper  and  (piietness.  Upon  a 
question  whether  deer  are  tamed  and  reclaimed,  each  case  must  ilquml 
upon  the imrticular  factH  of  it;  and  in  this  case  the  court  think  that 
the  facts  were  such  as  were  i)roper  to  be  submitted  to  the  jury;  and,  as 
it  was  a  (piestion  of  fact  for  the  jury,  the  court  can  not  perceive  any 
sutlicient  grcmnds  to  warrant  it  in  saying  tliat  the  jury  have  come  t(>a 
wrong  conclusion  upon  the  evidence,  and  do  not  feel  authorized  to  dis- 
turb the  verdict;  and  the  rule  for  a  new  trial  must,  therefore,- be  dis» 
charged." 

In  Bladen  vs.  ITifigs,  [13  C.  V>.  N.  S.,  S//),  in  l^jxcliequer  Chamber,  on 
appeal,  which  was  an  action  for  the  conversion  of  rabbits,  with  a  (rount 
for  assault,  and  which,  strictly,  only  involved  the  question  whether 
game  found,killed;  and  taken  by  a  trespasser  npon  the  land  of  another 
became  the  property  of  the  owner  of  the  soil,  ratUme  soli,  oi  was  the 


154 


111    i; 
li  \      I- 


A\ 


li!'*- 


^ii 


'':i 


property  of  tlic  (rcspnsser,  IJaroii  Wilde,  an  Englli.h  j'.i.lgc  of  higli 
iiiiHiority,  iMellor,  J.,  coiu'inriiig,  Siiid:  "It  lias  been  iir<;c<liii this  case 
that  ail  animal /era-  nattirw  could  not  be  the  subject  of  individual  prop- 
erty. But  this  is  not  so;  for  the  common  law  allirmed  a  right  of  prop- 
erty ill  animals  even  tliou;;h  they  were  /era;  natitnc,  if  they  were 
restrained  cither  hy  hnbit  or  inclosiire  within  the  lands  of  the  owner. 
We  have  tiie  authority  of  Lord  Coke's  reports  for  this  right  in  respect 
of  wild  animals,  such  as  hawks,  deer,  and  game,  if  reclaimed,  or  swans 
or  lisli,  if  kept  in  a  private  moat  or  pond,  or  doves  in  a  dove  cote.  But 
the  right  of  property  is  not  absolute;  for,  if  such  deer,  game,  etc., 
attain  tiieir  wild  condition  again,  the  property  in  them  is  said  to  be  lost. 
The  principle  of  tlie  common  law  seems,  thevefore,  to  be  a  very  reason- 
able (»ne,  for  in  cases  where  either  their  own  induced  habits  or  the  con- 
linement  imposed  by  man  have  brougbt  about  in  the  existence  of  wild 
animals  the  character  of  yu;«/rtt(>f/et;t  ajtarticulnr  locality,  the  law  does 
not  refuse  to  recognize  in  tlie  owner  of  the  land  which  sustained  them 
a  property  coextensive  with  that  state  of  things." 

In  Anioryyu.Fljjnn  {10  Johns.,  iVl'/c  York,  lO.-j),  which  was  an  fiction 
of  trover  for  tWv^  geese  of  the  wild  kind,  but  which  had  become  so  tame 
as  to  eat  out  of  the  hand,  the  court  said:  "Tlie  geese  ought  to  have 
been  considered  as  reclaimed,  so  as  to  be  the  subject  of  property.  Their 
identity  was  ascertained;  they  were  tame  and  gentle,  and  had  lost  the 
power  or  disposition  to  lly  away.  They  l;'id  been  frightened  and  chased 
by  the  defendant's  son,  with  the  knowledge  that  they  belonged  to  the 
plaintilf,  and  the  case  affords  no  color  for  the  inference  that  the  geese 
had  retained  their  natural  liberty  as  wild  fowl,  and  that  the  property 
in  them  had  ceased." 

So  in  Goff  vs.  Kilts  [15  Wend.,  f>.50),  which  was  trespass  for  taking 
and  destroying  a  swarm  of  bees,  and  the  honey  made  by  them,  it 
appeared  that  the  swarm  left  the  ]»laiiitilf"s  hive,  tlew  oif,  and  went  into  a 
tree  on  the  land  of  another,  'ihe  i)laintilf  (according  to  the  report  of 
tlie  case)  ke]>t  the  bees  in  sight,  followed  them,  and  marked  the  tree 
into  which  they  entered.  Two  monvlis  afterwards  the  tree  was  cut 
down,  the  bees  killed,  and  the  honey  found  in  the  tree  taken  by  the 
defendant  and  others.  The  plaintiff  recovered  judgment  in  the  court 
of  original  jurisdiction.  I '[ion  writ  of  error  the  higher  court,  speaking 
by  Mv.  .Inst ice  Nelson,  an  eminent  jurist  who,  at  a  sub.^equent  date, 
became  a  justice  of  the  kSii])renie  Court  of  the  United  States,  Maid: 
"Animals  J'ercc  nntura',  when  reclaimed  by  the  art  and  power  of  man, 


0  of  higli 
itliis  case 
dual  prop- 
it  of  i)i'op- 
tlioy  were 
the  owner, 
ill  respect 
,  or  swans 
i!Ote.  But 
[jaine,  etc., 
L  to  be  lost, 
jry  reason- 
n-  the  eon- 
ice  of  wild 
le  law  does 
lined  tliein 

^  an  action 
lie  so  tame 
it  to  have 
■ty.  Their 
ad  lost  the 
ind  cliased 
ed  to  tlie 
:  the  geese 
e  property 

"or  tal<in^ 
tliein,  it 
cut  into  a 
rejxirt  of 
(1  the  tree 
'  was  cut 
11  by  the 
the  conrt 
speakinj; 
lent  date, 
ites,  said: 
jr  of  man, 


155 

are  the  subject  of  i  qualified  property;  if  they  return  to  their  natural 
liberty  and  wildiiess,  without  the  animus rcvertcndi,  it  ceases.  Duriiij;^ 
the  existence  ot  the  (pialified  property,  it  is  under  the  ])iotectioii  of 
the  law  the  same  as  any  other  property  and  every  invasion  of  it  is 
redressed  in  the  same  manner.  Bees  avafirw  nut'nuv,  but  wlien  hived 
and  reclaimed  a  person  may  have  a  «]ualiiied  property  in  them  by  the 
law  of  nature,  as  well  as  the  civil  law.  Occupation — that  is,  hiviny;  or 
indosiii};'  them — yivi!S  property  in  them.  They  are  now  a  common  spe- 
cies of  property  and  an  article  of  trade,  and  the  wildiiess  of  their 
nature,  by  experience  and  practice,  has  become  essentially  subjected  to 
the  art  and  power  of  man.  An  unreclaimed  swarm,  lilie  all  other  wild 
animals,  belongs  to  the  iirst  occupant — in  other  words,  to  the  person 
who  first  hives  them;  but  if  the  swarm  Hy  from  tlie  hive  of  anotlier, 
his  qualiiied  property  continues  so  lonj;  as  he  can  keep  them  in  sight, 
and  possesses  the  power  to  pursue  tiieni.  Under  these  circumstances, 
no  one  else  is  entitled  to  take  tlieni  Q  lUael:  Comui.,  393;  2  KcnVs 
Connn.,  SOL)  The  question  here  is  not  between  the  owner  of  the  soil 
u]Kni  which  the  tree  stood  that  ineludtKl  the  swarm,  and  tiie  owner  of 
the  bees;  as  to  him  the  owner  of  the  bees  would  not  be  able  to  rejjain  his 
proi»erty,orthetruitsof  it,  without  \m\\^  H'dlty  oftrespass;  but  itby  no 
means  follows,  from  this  predicament,  that  the  riinhttotheenjoj'iiieiitof 
tlie])roperty  islost;  thattliebees  therefore  become  again  ^ira'Hff^j/jvr  and 
belong  to  the  first  occupant.  If  a  domestic  or  tame  animal  of  one  person 
should  stray  to  the  inclosnre  of  another,  tlie  owner  could  not  follow  and 
retake  it  without  being  liable  for  a  trespass.  Tlie  absolute  right  of  prop- 
erty, notwithstanding,  would  stillcontinue  in  him.  Of  this  there  can  be 
nodoiibt.  So,  in  respect  to  the  qualified  property  in  the  bees.  Ifiteon- 
tinued  in  tlie  owner  after  tliey  hived  themselves  and  abode  in  the  hollow 
tree,  as  thise.ialified  interest  is  under  the  same  pi'ofoction  of  tlie  law  as  if 
absolute,  the  like  remedy  existed  in  thecaseof  an  iivvasion  of  it.  It  can 
not,  1  think, be  doubted  thatil' the  property  in  tli'  ^varni  continues  while 
within  si^i-ht  o'"  the  owner — in  other  words,  while  he  can  distinguish  and 
identify  it  in  the  air — that  it  equally  belongs  to  him  if  it  settles  upon  a 
branch  or  in  the  trunk  of  a  tree,  and  remains  tluire  under  his  observation 
and  charge.  If  a  stranger  has  no  right  to  take  the  swarm  in  the  former 
cas<',  and  of  which  there  seems  no  question,  he  ought  not  to  be  per- 
mitted to  take  it  in  the  latter,  when  it  is  more  conlined  and  within  the 
control  of  the  occupant." 

There  is  nothing  to  the  contrary  of  this  in  Gilhit  vs.  Mason  [7  Johns. 
10),  cited  by  the  learned  coiinsel  for  Great  Hritaiii.    In  that  ease  a 


fn^^S*^ 


150 

nirro.  fiiKlcr  of  bees  claimed,  as  against,  one  iiitorosfcMl  in  tlic  soil,  tlie 
right  to  take  them,  iipim  the  {jfi-ouiid  aloiK-  that  lie  had  marked  the 
tree  in  wliieh  the  bi'es  were  louiid.  iJnt  the  eourt  decided  lliat  he 
could  not  ae.'iuire  owiiershii)  by  merely  inarkiiij''  tlio  tree,  observing 
that  "tlie  land  was  not  his,  nor  was  it  in  his  possession." 

In  Smith's  Tieatise  on  Personal  Troiierty,  a.  work  recently  ])nl)lishcd, 
the  law  is  thus  stated:  "Another  mode  of  obtainiiij;'  title  to  personal 
property  by  ori;;'inal  aeiinisition,  throu/^h  ociMipaiicy,  is  by  re(daiming 
animals  wild  by  natnre,  I'cnv  natiirw.  Wild  animals  ladong  to  nobody 
in  particular;  yet  they  become  the  (pialilied  [iroperty  of  any  one  who  sub 
jects  them  to  liis  possession  or  power.  The  (iualir;ed  jnoncrty  thus 
acquired  'onlinues  in  the  <!aptor  while  possession  or  control  is  main- 
tainetl,  or  until  the  animal  becomes  so  far  domesticated  that  it  will  not 
voluniarily  leave  witliout  the  aniinns  ri'vertendi.  When  this  point  is 
readied,  the  qualijietl  has  ripened  into  (thsolutc  property,  the  imture  of 
the  animal  being  (dm ngeil  trom/tm! /uf/H/Yi;  to  domifiv  nalnnv,  wild  to 
tame.  Until  thus  ehan.i;ed,  and  whiie  in  the  possession  or  j>o«"<'>' of  the 
captor,  his  (pmlified  property  will  be  fully  under  the  cogni/anee  and  jiro- 
tection  of  law;  but  if  the  aninml  escape  and  regain  its  natural  freedom, 
without  the  anhnus  rcrcrtt'tuli,  the  captor's  title  is  wludly  lost,  and  any 
other  ])erson  nmy  rightfidly  take  the  fugitive,  thereby  ac(piiring  the 
same  (lualilietl  i)ro|.<M'ty  possessed  by  the  tirst  captor;  and  so  on  indefi- 
idtely."  After  ol/serving  that  the  speculations  of  writers  who  attem])t 
to-draw  the  dividing  line  between  the  two  class(>s  of  animals,  wild 
and  iaine,  and  referring  to  animal;  that  are.  classed  as  wild,  the 
author  procee(^s:  "lielonging  to  the  latter  [wild]  class,  are,  however, 
sonu^  of  an  exceptionally  mild  tyi)e  that  frequently  become  doiuesti- 
cated,  and  hence  absolute  property  in  their  owners;  among  whicli  are 
deer,  horses,  rabbits,  doves,  and  others  of  like  character.  IJonej  bees 
are/<rrt'  iiatHra';  but,  when  ri'claimod  and  hived,  they  boxiome  the  sub- 
jects of  (lualilicd  property.  *  *  if  bees  when  hived  escape,  or  a, 
swarm  departs  from  the  hive,  the  owner  does  not  lose  his  properly  in 
them  so  long  as  he  pursues  and  is  able  to  identify  them.  While  jnoj)- 
erty  in  wild  aninuds  can  be  acquired  only  by  occupainy,  actual  or  con- 
structive, an  actual  taking  is  not  always  necessary  to  create  title;  it  is 
sullicient  if  the  pursuer  bring  the  animal  within  his  power  or  control.'''' 
Sec.  37, 


From  the  principles  thus  announced  by  courts  ami  Jurists,  this  ride, 
at  least,  amy  be  fairly  deduced  as  resting  in  sound  reason,  in  natural 


157 


soil,  the 
ikcd  (lie 

lliiit  he 
il). serving 

iihlislu'd, 

personal 

Mrlainiinj^' 

1)  nobody 

who  sill) 

■rty  thus 

is  iniiin- 

t  will  not 

1  point  is 

nalute  of 

',  wild  to 

vcf  ol'  the 

>  and  ])r()- 

freedoMi, 

and  any 

irin^iX  the 

)n  indcfi- 

it  tempt 

lis,  wild 

ild,   the 

owever, 

donu'sti- 

hic'ii  are 

ney  bees 

the  sub- 

1)0,    Ol'  ?- 

peify  ill 
lie  ])rop- 
1  or  con- 
tie;  it  is 
control.'''' 


hi;;  rule, 
natural 


jiistic*',  and  in  a  wise  publie  policy:  That  although  animals  fcra; 
natiiriv,  however  valuable  to  the  world,  are  ii(tt  the  subjects  of  prop- 
erty, while  in  their  <UM;;inal  condition  of  wildness,  hn/ond  the  control 
of  man  for  any  pnrimnc  ivhatercr,  tlie  law  will  y<'t  recut^iii/e  a  right  of 
projterty  in  them  in  lavor  of  (Uie  who,  by  acting  upon  their  natural 
iusliiicts,  and  by  care,  watchfulness,  self  denial,  and  industry,  induces 
or  causes  them  to  alndc  for  stated  periods  in  eaidi  year,  upon  his 
premises,  so  that  he,  and  he  onh/,  is  in  a  position  to  deal  icith  the  race 
as  a  irhole,  t>il;in(j  its  increase  rcdnlarli/  for  commercial  iturposcs 
withoitt  im))(iiri)t(i  the  stock.  Tiie  authorities  i)roeeed  upon  these 
grounds:  That  "  oecii[»ation,"  as  it  is  called,  is  the  foundation  of  prop- 
erty in  animals  /era'  natura';  that  the  right  of  property  is  not  lost 
when  the  animals  are  away  from  their  accustomed  habitation  provided 
for  tliem  upon  the  premises  of  the  owner,  as  long  as  their  absence 
is  aecompanied  with  the  intention  to  return;  and  that  snrli  inten- 
tion is  deemed  to  exist  while  they  have  the  habit  of  returning. 
Occnpation  is  a  fact  to  be  (h'terniined  with  reference  to  liic  iialnre 
and  habits  of  each  particular  ra(;e  of  animals.  What  is  suHicieiit 
oceui)ation  in  res[)eet  to  some  animals  may  be  wholly  inade(|iiate  to 
give  a  right  of  property  in  others.  While  each  case  must  depend 
upon  its  own  facts,  there  must  be,  in  every  ease  of  animalsyi/vr /(a//n>f'i 
in  A'liieh  a  right  of  proi)erty  is  asserted,  .sw^c//  an  occupation  as  will 
enable  the  owner  or  controller  of  tlu^  premises  u  which  Ihey  lial»itiially 
resort  to  establish  a  husbandry  in  respect  totheui  -an  (»rcii|iai  ion  which 
gives,  at  least,  such  certain,  continuous  control  of  tli<  ui  that  their 
increase  can  be  regularly  taken  for  inan's  use  witlKUit  impairing 
the  stock.  Of  course,  without  occui)ation,  the  animus  rcrcrtcndi  will 
not  alone,  or  in  itself,  avail  to  give  a  right  of  property  in  wild  animals. 
I>ut  the  animns  rcccrtcndi  \\'\\\  eontiiiue  a  right  of  property  aequii  rd 
elfectively  by  occupation.  The  intention  »tr  habit  of  returning  to  the 
premises  of  the  occupier  must  coexist,  at  all  times,  with  I  he  lact  of 
occupation.  If  that  intention  or  habit  ceases,  that  is,  if  (he  animals 
Itermanently  depart  from  the  i)remises  of  theowner,  the  rights  ac([uircd 
by  oecu[)ati(»n  are  lost,  and  they  will  become  (he  ]»roperty  of  the  lirst 
taker.  It  is  this  liability  to  change  in  ownersliij)  resulting  from  the  loss 
of  control  by  man,  to  which  writers  rcler  when  they  speak  of  iiualitied 
property  in  animals  fcrw  natura',  as  distinguished  from  that  full,  com- 
plete, absolute  ]>roperty  that  may  bo  lost  only  by  the  consent,  express 
or  implied,  of  the  owner,, 


i    ■'■■ 


\ 


168 

Let  us  see  what  are  tlioaiialoffies  between  tlie  case  of  these  fur  seals 
.111(1  the  case  of  certain  animals,  y'trff  naturw,  which,  actjordinj^  to  uni- 
versal hiw,  ujay  become  the  subje(!t  of  individual  property.  Tliis  mode 
of  reasoning,  although  i)ronounced  in  argument  to  be  unsafe  and  likely 
to  mislead,  has  the  sanction  of  experience.  A  very  large  proportion 
of  the  judicial  decisions  in  both  the  United  States  and  Greut  Britain 
rest  upon  the  api^Iication  that  has  been  made  in  cases,  new  in  their 
circnmstanceSjOf  tile  principle  of  rules  announced  in  prior  cases.  I'arke, 
J.  in  Mirchoiisc  vs.  licnncll,H  liuuiham,  j).  515,  declared  it  to  be  of  import- 
ance to  keep  this  princii)le  of  decision  steadily  in  view,  not  merely  for  tlie 
determination  of  the  particnlar  case,  but  for  the  interests  of  the  law  as 
a  science.  And  Dr.  riiillimore  has  well  said  that  analogy  has  great 
inlinence  on  the  decisions  of  international  as  well  as  of  municipal 
tribunals.  1  rhUlitnorc,  §  39.  Another  writer  declares  analogy  to  be 
the  instrument  of  the  progress  and  development  of  the  law.  Boicycr\s 
Kcadln<jH,p,  88.  If  the  conditions,  which  courts  aiul  jurists  have  held 
to  be  suflicient  to  give  a  right  of  property  in  certain  useful  animals 
fvrw  naturiv,  substantially  exist  in  the  cases  of  other  wild  aninuils, 
valuable  to  mankind,  and  in  resi)ectto  which  no  ruling  has  been  made, 
then  the  principle  of  the  prior  cases,  so  far  as  applicable,  nuiy  well  be 
recognized  and  enforced  in  subsecpient  cases. 

In  what  way,  aciiording  to  the  authorities,  may  pi'operty  be  acquired 
in  a  swarm  of  bees?  All  that  need  be  done  by  man,  as  a  condition  ol 
acquiring  pro])erty  in  them,  is  to  provide,  on  his  inemises,  a  place  ov 
hive  where  they  may  abide,  to  which  they  may  come  and  go  at  will, 
and  at  which  a  proper  proportion  of  their  honey  can  be  obtained  from 
time  to  tinu>.  While  in  some  countries  bees  are  fed,  as  a  general  rule 
they  gather,  here  and  there,  without  man's  aid,  all  that  is  necessary  to 
nourish  them.  The  owner  never  puts  his  haiul  u])on  the  swann,  or 
upon  individinil  bees,  though  hemightshul  them  up,  from  time  to  time, 
in  their  hive.  It  has  never  occurred  to  any  writer  or  court  to  consider 
wlu'ther  ownership  of  the  swarm  dei)ende(l  ujion  the  ability  of  tlieowiier  to 
identify,  and  prove  ownership  of,  each  individual  bee.  The  question 
of  property  does  not  arise  as  to  individual  bees,  but  only  in  respect  to 
the  swarm.  All  that  the  owner  need  do  is  to  [uovide  a  place  for  the 
swarm,  abstain  fr(»in  taking  all  tlie  honey  made  by  the  bees,  but  leaving 
enough  to  sustain  them  until  the  next  y»'ar,  and  protect  them  against 
disturbance  while  in  the  hive.  That  being  done,  as  long  as  tliey  occupy 
that  hive  for  their  abiding  place,  wheu  uot  moving  through  the  air,  and 


159 


fur  seals 
ijjf  to  uui- 
'liis  mode 
iid  likely 
ropoi'tiou 
b  Britaih 

ill  their 
.  I'arke, 
if  iiiiport- 
■ly  for  tlie 
lie  liiw  as 
las  yreat 
iiiuiicipal 
o<;y  to  be 
Bowycr'fi 
lave  held 
I  animals 

iuiimals, 
;eii  made, 
ly  well  b(i 

aequired 
ditioii  of 

]>lace  or 

at  will. 

led  from 

leral  rule 

ssary  to 
warm,  or 

to  time, 
consider 
owner  to 
question 
.'spect  to 
e  for  the 
leavinju: 
aj-ainst 

-occupy 

air,  and 


<» 


i\%  lonjj  as  they  arc  in  the  habit  of  retnrninjj  to  it,  or  ean  be  pursued 
and  identified  when  absent  from  their  hive,  the  law  gives  to  the  owner 
of  the  premises  a  right  of  property  in  the  swarm,  rossession,  in  fact, 
of  the  swarm,  or  of  the  individual  bees,  is  not  otherwise  necessary. 
Possession,  in  law,  exists,  if  the  swarm  regularly  abides  in  the  hive 
so  that  the  product  (;au  be  regularly  obtained  for  man's  use.  And 
when  the  swarm  flies  abroad  the  right  of  proi)erty  is  not  lost  as  long  as  it 
canbe  pursued  and  identified,  and  does  not  establish  another  habitation. 
And  this  right  attaches  not  only  to  the  swarm  that  has  continuously 
occupied  the  hive  provided  for  it,  but  to  new  swarms  which  go  out 
from  overpopulated  hives  in  search  of  another  home.  The  latter, 
equally  with  the  original  swarm,  remain  the  property  of  the  owner 
of  the  hive,  wherever  they  may  go,  as  long  as  they  can  be  identilled 
and  until  all  hope  of  their  being  recovered  is  abandoned. 

In  the  case  of  wild  pigeons,  what  must  man  do  that  he  may  ac(|uirc 
property  in  them  ?  Nothing  more  than  to  provide  a  [)lace  or  box  in 
which  ihey  can  take  shelter,  and  where  they  ean  breed  and  rear  their 
young  in  safety.  There  is  no  possession  in  the  owner  oilier  than  that 
coming  from  his  occui)aney  of  the  land,  and  from  his  ownership  and 
control  of  the  place  provided  for  the  use  of  the  Hock.  Tiiere  is  no 
handling  (as  there  could  not  be)  of  individual  pigeons  (;onstituting  the 
flock.  But  the  owner  holds  such  relations  to  the  flock  that  he  can  reg- 
ularly take  its  increase  without  diminishing  the  stock,  so  long  as  they 
continue  to  frequent  the  ])laco  pro\ided  for  them.  While  the  capac- 
ity to  do  that  exists,  the  original  "occupation,"  the  foundation  of  the 
right  of  property,  remains  in  full  force. 

In  the  case  of  deer,  naturally  wild,  all  that  is  essential  to  the  acquisi- 
tion of  property  in  them  by  man  is  that  he  provide  or  kcej)  a  place  for 
them,  to  which,  by  reason  of  his  care,  industry,  and  fbrbearanc(^  they 
habitually  resort,  and  where  they  remain  with  such  regularity  under  his 
general  supervision,  control,  and  ])rotection  that  he  can,  without  impair- 
ing the  stock,  reap  thebenelit  of  the  increase.  In  the  cases  cited  from  the 
English  courts,  it  does  not  appear  that  the  deer  were  taken  into  aiitual 
custody.  Their  owner  simply  built  a  fence  around  a  Ibiest  of  vast 
extent,  in  which  the  deer  roamed  at  will.    Their  owner  could  not  lay 

leasure.    Tliev  could  be  ii 


ipon 


1)U 


ally 


only  as  other  deer  of  the  forest  were  taken,  by  shooting,  or  with  dogs. 
The  owners  simply  prote(;ted  them  and  imule  a  husbandry  of  them. 
Similar  observations  may  be  mad(?  in  respeet  to  geese  and  swans.    If 


IGO 

by  caro  iind  industry  a  itlacc  is  jji-ovidcd  for  tlioiii,  ulicro  tlioy  cnii  aWdo 
ill  safety  for  the.  piirijosos  of  hiccdiiijj:,  to  which  tln'y  liabitually  <!on,e, 
.iiid  wlicrc.  tlicy  are  protoijtcd  from  disturhaiico,  so  tliat  tlicir  increase 
niay  l)(i  regularly  talicii  for  man's  iiso,  all  is  done  that  is  retjuired  to  j-ive 
property  in  them.  Wliile  these  conditions  exist,  the  right  of  property 
remains. 

Tile  instinct  of  a  wild  iiniiiial  to  resort,  for  the  first  time,  to  a.  par- 
ticailar  place  is  not,  in  the  case  of  bees,  pigeons,  deer,  wild  geese,  or 
.swans,  tlie  creation  of  man.  lint,  in  a  substantial  sense,  their  subse- 
qneiit  return  to  (ind  rem  a  In  in  (j  at  that  place  from  time  to  time,  so 
that  a  husbandry  can  be  established  with  resixct  to  them,  is  due  to  the 
self  denial,  care  ami  industry  of  tlie  i)i'r;i()!i  who  provides  for  tliem  a 
place  which  he  maintains  and  protects  for  their  use.  They  do  not, 
under  the  circumstances  stated,  bci onie  tame,  wiiliin  the  literal  mean- 
ing of  Ihiit  word,  and  so  as  to  lose  all  tlieir  original  wildness  of  nature; 
but,  ill  the  eye  of  tlie  law,  tiicy  arc^  so  far  reclaimed  from  their  natuiiil 
condition  of  wildness  that  they  do  not  always  lly  from  the  presence  of  man, 
or  escape  from  his  dominion  and  control,  but,  as  the  result  of  his  art  and 
industry,  remain  so  far  in  his  power,  that  their  i>roduct  can  be  utilized 
with  th(^  same,  regularity,  and  almost  as  readily,  us  the  product  of 
domestic  animals  may  be  utili/.ed. 


It  has  Iteon  said  that  th(i  condiig  of  these  fur  seals  to  the  Pribilof 
Islands,  from  year  to  year,  for  the  puri)oses  already  indicated,  is  not 
to  be  attrii)nled  to  anything  that  the  United  States,  as  the  owner  of 
the  islands,  has  done,  or  has  refrained  from  doing.  Is  this  true?  Pre- 
inising  that  it  is  not  the  number  of  things  done,  which  determines 
the  value  of  what  is  done,  let  me  ask,  whether  the  IJiiitcMl  States 
has  done  all  that  is  neciessary  in  order  to  utilize  this  race,  with- 
out destroying  it,  or  imi)eriling  its  existence.  Would  the  seals 
continue  to  come  to  i'ribilof  Islands,  from  year  to  yea.',  if,  by 
the  direittioii  or  with  the  assent  of  the  United  States,  they  were 
met,  as  they  might  be,  at  the  shore  of  the  islands,  and  driven  back  into 
the  water?  Would  tliey  remain  on  the  islands  duiing  the  breeding 
season  ex<'ei)t  for  the  care,  taken,  under  regulations  prescribed  by  the 
United  States,  to  induce  them  to  do  so,  and  excei)t  for  the  protecti(ni 
allorded  them,  while  on  the  islands,  against  the  pursuit  of  seal  hunters 
having  iu  view  immediate  ]>rolit  for  tluMiiselves  rather  than  the 
preservation  of  these  animals  tor  the  benefit  of  mankind?  These 
•luestious  must  receive  an  answer  iu  the  negative.    Iu  view  of  the 


IGl 


cnn  al)i(lo 
illy  (M)ir.e, 
•  increase 
!(l  to  };ivo 
■  propinty 

,  to  a  ]>ai'- 
jjocsc,  or 
eir  sulisc- 
0  time,  so 
due  to  the 
or  them  a 
y  do   not, 
'nd  mean- 
ol' nature*, 
'ir  natural 
ice  of  man, 
ids  art  and 
be  utilized 
>roduut  oi' 


0.  Pribilot' 
(mI,  is  not 
owner  of 
Pre- 
I'terndnes 
(Ml   States 
i(,-e,   witli- 
tlie   .seals 
u',  if,   by 
liey  were 
baek  into 
bi-eedinj;" 
ed  by  the 
)roteetiou 
1  hunters 
tliiin  the 
!     These 
w  of  the 


lue? 


iiabits  of  the  seals,  iunl  of  the  absolute  neeessity  of  tiieir  beitij  upon 
land,  for  several  months  in  each  year,  for  purposes,  at  least,  of 
breeding  and  of  rearinj;'  their  younj;",  it  cannot  be  doubted  that  iho 
very  existence  of  the  race  (l;!i)ends  upon  their  bein^'  cared  for  and 
protected  at  the  place  to  wliich  they  liai)itu;illy  resort,  and  to  which, 
when  going  back  into  the  sea,  they  will  certainly  return  the  suc- 
ceeding si)ring  and  sunniier.  It  will  not  do  to  say  that  tiiese  ainnials, 
if  not  allowed  to  occupy  the  I'ribilof  Isliinds,  would  seek  some  other 
breeding  grounds;  for,  if  any  cliange  of  location  sliould  ever  take 
l)lace,  the  same  (piestions  would  arise  between  the  owner  of  the  new 
breeding  grounds  and  pelagic  sealers  that  are  inesentetl  in  this  case. 
lUit  the  possibility  that  these  seals,  if  driven  to  that  course,  might 
S(H'k  a  new  location,  can  not  Ixi  made  the  basis  of  a(!tion  by  this 
Tribuind  or  alfect  the  princii)les  involved  in  the  (piestion  submitted 
for  deternwnation;  for,  we  know  that  these  seals,  with  abuiulaut  o[>por- 
tuiiities  to  select  other  breeding  grounds,  have,  for  more  than  a  cen- 
tury past,  occupied  Pribilof  Islands  as  their  land  iiome.  And  there 
is  no  reason  to  Ixilieve  that  they  will  go  elsewhere,  as  long  as  the 
United  States  keeps  those  islands  exclusively  as  their  breeding 
grounds,  and  takes  care  that  they  are  not  disturl)ed  by  merciless 
pelagic  sealers  who  kill  without  regard  to  sex,  and  slaughter  mother 
seals  about  to  deliver  their  young  without  the  slightest  concern 
on  that  account.  Tiie  presumption  is  conclusive  that  there  are  no 
coasts,  near  or  on  die  migration-ioute  of  these  animals,  which  present 
tliC  s'»!ao  ciiinatic  and  other  conditions  as  are  fonnd  by  them  at 
l'ribih»f  Islaiuls. 

In  respect  to  the  fur  seals  fn^quenting  the  I'ribilof  Islands,  what  did 
liussia  do,  and  what  has  tiie  United  States,  succeeding  to  its  rights, 
done,  in  order  to  bring  them  within  the  rules  of  [)roperty  applicable  to 
animals  feriu  iiatttrw  which  may  be  the  basis  of  a  i)ernianent  hus- 
bandry? Neither  hive,  box,  park,  nor  other  eucdosure,  has  been  pro- 
vided for  them,  as  in  the  case  of  bees,  i)igeons,  and  deer,  respectively, 
because  su(!h  a  pi'ovisiou  is  forbidden  l»y  the  nature  and  habits  of  the 
animals,  and  would  be  absolutely  useless  for  any  practical  purpose. 
Cut  an  abiding  jjlace  for  all  the  i)urposes  for  which  they  must,  of 
necessity,  come  to  and  remain  upon  land,  has  been  [)rovided  for  them. 
Upon  the  discovery  by  Russia  of  the  I'ribilof  Islands  it  was  ascer- 
tained that  this  race  made  it  tiieir  land  home.  Russia  desired  this 
condition  of  things  to  continue  in  order  that  these  animals  might  bo 
1141)2 11 


11  i 


1G2 


it. 

i 


utilized  for  public  and  ooinuu'rcial  purposes,  ami  to  that  end  regula- 
tions were  estal)lislie(l  lestiicting  the  nunibei-  to  be  taken  annnnlly 
for  such  pur[)ose.s.  That  system  has  been  perpetuated  and  iini»roved 
by  tho  United  States,  with  the  result  that  the  return  of  these  seals 
to  tho  Pribilof  Islands,  from  year  to  year,  in  the  same  months,  and 
their  remaining  upon  tiie  islands  for  stated  periods,  and  so  that  a 
duo  proportion  of  males  may  bo  taken  without  at  all  disturbing  the 
herd  in  its  entirety,  is  absolutely  assured,  provided  only  tho  extermi- 
nation of  tho  race  by  pelagic  sealing  is  prevented. 

liut  this  is  not  all.  We  have  seen  that  by  an  act  of  Congress,  ])assed 
soon  alter  the  United  States  acquired  I'ribilof  Islands,  the  islandsof  St. 
Paul  and  St.  George  were  set  apart  as  tho  land  homo  of  these  animals. 
A  place  was  thus  i)rovided  for  them  where  they  could  abide  while 
breeding,  and  roaring  their  young,  and  while  their  coats  of  fur  were 
imdergoing  a  change.  Only  a  limited  numboi'  of  persons  aro  allowed 
to  go  to  or  remain  on  the  islands.  Regulations  have  been  estab- 
lished pievonting  the  herd  from  being  unduly  disturbed  while 
there.  Enormous  expense  has  been  iiuairred  in  providing  vessels  to 
guard  the  breeding  groujids  against  marauding  i)arties  engaged  in  seal 
hunting;  and  tho  Government  of  the  United  States  protects  the  race 
against  indiscrinunate  slaughter  while  on  land.  The  [)recautions  thus 
taken  for  tho  preservation  of  the  herd  may  .sometinu,'s  have  been  evaded, 
but  it  is  not  to  be  doubted  that  if  raiders  were  permitted,  without  restric- 
tion, to  capture  and  kill  these  seals  while  on  the  islands,  the  race  would 
be  speedily  exterminated  as  other  animals  of  like  kind  have  been 
destroyed  in  tJio  waters  of  tho  Southern  Ocean.  J''urthor,  tho  United 
States,  recognizing  the  value  of  this  race  of  animals  to  itself  and  to  com- 
merce, forbears  to  impair  the  stock  through  indiscrinn'nate  killing,  and 
not  only  forbids,  under  severe  penalties,  the  killing  of  fennUo  seals,  but 
linuts  tho  taking  on  tho  islaiuls  each  year  to  such  a  proportion  of 
nniles  as  (!an  safely  be  taken,  for  commeicial  purposes,  without 
destroying  tho  race. 

If  these  animals,  from  theii  nature  aiul  habits,  needed  an  actual 
shelter  over  their  heads  while  at  the  breeding  grounds,  and  sucli  a 
shelter  was,  in  fact,  provided  for  them  by  tho  United  States,  could 
hunian  ingenuity  distinguish  the  case,  in  princiiple,  from  that  of  other 
valuable  aninnds  fcrw  natnrtv,  in  which,  by  tho  law  everywhere,  proi)- 
erty  may  bo  acquired  by  tho  caro  ami  industry  of  man?  Instead  of 
such  shelter  for  their  protection  during  storm  and  rain  the   United 


1G3 


ogulsv 
nuiiUy 
(loved 
>  seals 
is,  ami 
tliut  il 
iig  tlio 
xtcrnii- 


IsofSt. 

luimals. 

c  wliile 

ur  were 

allowed 

I  estab- 

il    while 

essels  to 

d  in  seal 

the  raee 

uiis  tluxs 
evaded, 
t  vestrie- 

|ce  would 
ve  been 
United 
.1  to  com- 
ing, and 
|eals,  but 
liion  of 
without 

In  actual 
such  a 
^3,  could 
1  of  other 
^•e,  prop- 
|i  stead  of 
United 


States  provides  them  with  what  tlicii'  naliires  and  necessities  require, 
namely,  a.  land  home  wiierc,  without  distmbance,  tliey  breed  and  rt-ar 
Mieir  young,  and  wiiere  tlie  safety  of  tiie  race  from  [)ursnit  and  destruc- 
tion, wliile  at  that  iiome,  is  assured.  All  this  has  been  done  at  great 
expense,  and  by  tiie  exereise  of  care  and  supervision.  To  say  that  the 
United  States,  by  providing  upon  its  land  a  hive  for  a  swarm  of  bees, 
or  a  box  for  a  dock  of  iiig(!ous,  or  a  place  lor  a  lot  of  dt;er,  in  which 
those  animals  respectively  may  abide  while  breeding  and  rearing  (heir 
young,  or' for  other  puri>oses  required  by  tht^ir  nature,  will  bci-onu^  the 
owner  of  such  animals  ;is  long  as  they  have  the  habit  of  returning  to 
the  places  so  provided  for  them,  whereby  their  product  may  be  regu- 
larly taken  for  man's  use,  and  yet  that  it  cannot  become  the  owner  of 
a  herd  or  family  of  fur  seals  born  and  reared  ui)on  its  islands,  ami 
for  which  it  [uovides  a  land  home  where  they  breed  and  rear  t'"jir 
young,  wlierci  they  abide  in  salety,  during  stateil  jjcriods,  ami  to  which 
they  regularly  retn.ru,  so  that  the  increase  may  be  taken  for  com- 
mercial purposes  without  impairing  the  sto(!k,  is,  I  sid)mit,  repugnant 
to  souiul  reason  aud  iuconsistent  with  recognized  principles  in  the  law 
of  property. 

It  is  said  that  these  islands,  before  their  discovery  by  Ilussian  navi- 
gators, were  tlie  land  honui  of  these  animals,  and,  consei[Ucntlyj  that 
the  seals  were  not  [novided  with  that  home  by  Russia  or  by  the  United 
States,  \vhich  succeeded  to  Russia's  rights.  The  answer  is,  ihataltersuch 
discovery  the  islands  of  St.  L'aul  ami  St.  Cleorge  have  continucil,  for 
more  than  a  century,  to  be  the  land  home  of  these  animals  only  be- 
cause Russia,  and  subseiiuently  the  United  States,  so  ordctcd.  If  the 
United  States  desired  to  establish  a  naval  post  on  L'ribilof  Islands, 
or  to  use  those  islands  for  any  other  public  purpose  dill'erent  Irom 
those  for  which  they  have  been  used  since  1807,  it  could  easily  drive 
the  seals  back  into  the  sea  when  they  attempted  to  "'haul  up"  uu  the 
islands  during  the  breeding  season.  Such  treatment  might  resu.t  in 
thedestruction  of  the  race,  as  we  cannot  be  sure  from  any  evidence 
before  us  that  any  other  islands  would  be  suitable  for  their  purposes. 
IJut  no  such  treatment  is,  in  fact,  accorded  to  them.  On  the  contrary, 
the  islands  are  preserved  for  their  use  as  a  land  home.  It  is  as  if  the 
United  States  had  said,  upon  the  ac(pusition  of  the  islands  of  St.  Paul 
aud  St.  Oeorge:  "These  valuable  animals  have  their  breeding  grounds 
here;  other  aninmls  of  like  kind  have  been  externunated  by  indiseriui- 
inate  slaughter,  or  for  the  want  of  governmental  protection;  this  race 


i 


164 

shall  be  proservt'd  IVoiii  (Icstructioii  so  that  mankind  <'an  j?et  tlie  ben 
clit  of  tlteni  lor  food  and  for  raiment;  toihntcnd  tliesu  inlands  sliall  not, 
as  is  the  case  in  respect  to  other  parts  ol'  the  i>Mblic  domain,  be  subject 
to  settlement,  bat  siiall  be  set  apart  as  the  habitation  of  these  animals 
exclusively, where  they  nnvy  breed  and  rear  theiryoung;  and  they  shall 
be  protected  from  molestation  by  seal  hunters  while  on  the  islands, 
and  oidy  such  portion  of  males  allowed  to  be  taken,  annually,  as  will 
not  endanger  the  intej^rity  (►f  the  herd  as  a  whole."  All  this,  it  is 
arfjfued  by  counsel  lor  the  Ibilish  (lOvernuK'nt,  is  not  eciulvalent  to 
"occupation,"  as  that  woid  is  understood  in  the  law  rej^ulaling  the 
ac(iuisition  of  property  in  animals  fern  naturiv,  and  is  of  less  con- 
siifpu^iice,  as  anieans  of  acquiring  [uoperty  in  these  seals,  than  that 
which  is  done  when  a  hive  is  provided  for  bees,  or  boxes  for  pi.i;eons, 
or  a  place  for  deer.  Tiie  fact  is,  the  ease  of  these  seals  is  made  stronfi«'r 
in  conseipience  of  their  ])ecnliar  nature  and  habits  of  life;  their  honui 
on  American  soil  is  a  pernnment  home,  necessary  to  their  existence, 
and  in  respect  to  which  they  never  lose  Wxe.  animus  rvccrtendi. 


Again,  it  has  been  suggested  that  these  aiumals  jiasa  much  of  their 
tinui  in  the  high  seas,  which  are  free  to  all,  for  purposes  of  food.  But 
that  is  (piite  as  immaterial  as  to  say,  in  the  case  of  bees  and  pigeons, 
that  they  i)ass  the  most,  or  much,  of  their  tinui  in  the  open  air,  which  is 
free  to  all.  The  circumstance  that  tliese  fur  seals  go  great  distances 
from  the  I'ribilof  Islands  in  search  of  food  (!an  n(/t  all'ec.t  tiie  principle 
involved.  Supi)0se  they  passed  each  day  in  tl.e  sea,  just  beyond  the 
outer  line  of  territorial  waters,  but  returned  each  niglit  to  the  islands; 
the  (piestion  of  ownership  would  be  precisely  the  same,  in  respect  to 
the  princii)les  governing  it,  as  is  now  i)resented,  because  we  know  that 
while  these  seals  go  regularly,  at  stated  periods,  each  year,  over  the 
same  route,  into  the  Xorth  Pacillc  Ocean,  they  return  by  the  same  route 
substantially,  at  the  same  time  in  each  year,  to  their  breeding  grounds  on 
the  islaiuls  of  St.  I'aul  and  St.  George.  The  length  of  time  which  they 
pass  in  the  higii  seas,  in  search  of  food,  is  wholly  immaterial,  in  view 
of  the  fact  that  they  will  return  at  a  particular  tinu^  to  their  land  honu*. 
They  are  uidikci  in  their  habits  any  other  knowii  animal  that  passes  its 
time  i)artly  on  land  and  ])artly  in  the  high  seas.  Ti:ey  are  not  i)roducts 
of  the  sea.  They  (!an  iu)t  breathe  under  the  water.  They  are,  in  every 
substantial  sense,  as  much  appurtenant  to  the  islands  on  which  they 
are  born,  and  w^  ere  they  breed  and  rear  their  young,  as  if  they  never 


I(i5 


the  iH'ii 
]\'.\\\  not, 
B  subjt'ct 
)  atiiiiiiil^ 
hoy  shall 

isliUids, 
y,  iis  will 
tliis,  it  is 
iviiU'iil  to 
ating  the 

less  con- 
than  that 
•  pi^iooiis, 
cstionji't'V 
lieir  home 

existence, 

eh  of  thoiv 
food,    lint 
(I  pigeons, 
,  which  is 
distances 
principle 
)eyon<l  the 
le  islands; 
respect  to 
know  that 
,  over  the 
same  route 
>rounds  on 
vhich  they 
il,  in  view 
and  homo, 
passes  its 
t  pv(»<lucts 
c,  in  every 
,vhich  they 
ithey  never 


passed  beyond  territorial  watois.  Xotwitlistandinj,'  they  fr(Minent  the 
sea  for  jjurposes  of  (oud,  they  are  strictly  iai:d,  ratlier  than  marine, 
ijniinals,  bc-ause  they  are  (M»nceived  and  are  born  and  reared  on  land, 
could  not  be  con<!eived  nor  (tonu'.  into  existence  in  the  waters  of  tliC! 
ocean,  and  must,  from  the  necessities  of  Iheii-  nature,  abide  ui)on  land 
at  stated  periods. 

Next,  it  is  said  that  some  of  the  seals  which  have  been  on  the  islands 
of  St.  Paul  ar«^  known  to  iiavc  <;()nc  the  suceeedinji'  year  to  th<i  ishiiid 
of  St.  (Jeor^e.  The  proof  ou  that  point  is  tooslijj;ht  and  uiisatisl'actory 
to  be  regarded.  Uut  if  the  lai't  be  as  suggested,  it  would  be.  wholly 
immaterial  in  thei)resenl  imiuiry;  for  both  islands,  taken  together,  are 
the  proixu'ty  of  one  nation,  and  that  nation  only  is  in  a  i»ositiou  to  deal 
with  the  race  as  a  whole  and  save  it  from  extermination. 

I  have  not  understood  learned  counsel  to  dispnte  the  i)roposition 
that,  according  to  the  JurisprudtMU-e  of  all  civili/ed  nations,  some 
animals  ferw  naluni;  are  suscei)tible  of  owniMship.  Nor  do  lliey 
insist  that  the  principles  recognized  in  the  Koman  law,  and  e(iually 
in  England  and  the  United  States,  in  respect  to  the  acquisition  of 
property  in  bees,  pigeons,  deer,  etc.,  do  not  obtain  in  all  civilized  coun- 
tries. We  have  not  been  referred  to  any  iustan(!e  in  whicii  it  has  been 
otherwise  declared.  But  it  is  earnestly  (jontended  that  the  diUcienees 
between  fur  seals  on  one  side  and  bees,  pigeons,  dei'r,  and  the  like, 
on  the  other  side,  are  such  as  to  preclmle  the  ai)i)li(ation  to  tlu;  former 
of  the  rules  determining  the  acipiisition  of  property  in  the  latter 
class  of  animals.  Tiiat  all  these  animals  are  uidike  in  many  respects 
no  one  will  dispute.  But  this  cireumstanco  is  not  of  legal  conse- 
quence, unless  the  diil'erences  are  such  as  to  i)rcvent  the  ai)i)lication 
of  the  general  rule  prescribing  the  conditions  on  which  property  may 
be  acquired  in  wild  animals.  There  are  no  two  classes  of  domestic 
animals  exactly  alike  in  their  nature  and  habits,  but  there  are  qualities 
common  to  all  such  aninuils  wliieli  justify  the  law  not  only  in  declar- 
ing them  to  be  the  subject  of  ownership  by  man,  but  in  declaring 
that  the  light  of  property  in  them  is  not  lost  while  they  are  absent 
from  thv^.  owner,  even  without  the  intention  of  returning  to  his  ](Osess- 
siou.  Now,  upon  what  ground  lests  the  gencial  rule  that  aniniiils 
fcriv  natiirw  may  not  become  the  sul)ject  of  property?  An<l  why  does 
the  law  recognize  exceptions  to  that  rule  in  the  case  of  some  animals 
which  admittedly  belong,  in  their  original  comlition,  to  that  class? 


IfiG 


'I'lic  ^t'lK'i'iil  iiilc  IliJil  wild  iiiiimiil.^  hccitinc  flic  j»r(i])orty  of  tlio  fir.st 
takci- proccods  upon  (lie  .i;i(niinl,  stiiicil  in  tlio  liisliliitcs  of  .Iiistiniiiii, 
tliat  "iialniiil  reason  jiivcs  to  Un-  lii-st  occupant  that  \vlii<'Ii  liad  noiire- 
vious  owiici."  iJiit  llicic  arc  exceptions  to  tiic  general  iiilt^  tliat  arise, 
IVoMi  tlic  necessary  wauls  of  society.  To  the  end  tluit  it  ina,> 
n(»t  Ios(>  llie  liencllt  of  Viduable  animals,  exlnuislildc  in  (pniiitity, 
sucicly,  in  otliei'  words,  I  lie  law  s|M'akinjLf  lor  oi;;auize(l  society,  stimu- 
lates tlie  exercise  oi'  care,  industry,  and  selt'deiiial,  liy  perndtlinjij 
owneisliip  in  such  wild  animals  as  can  lie  induced  to  conu'  and 
rvmaiu  so  Car  iimh'r  human  control  aiul  supervision  that  their  prod- 
uct can  be  rc;;ularly  iitilizeil  for  the  use  ol'  manhiiid  withoul  injury  to 
tho  stock.  And  (hh  rii;ht  of  jiropcrly  is  under  tiie  protection  of  the 
law.  If  the  law  did  not  so  declare  tlu;  inevitable,  result  would  be 
the  e.xlerininaf ion,  by  waste  or  consumption,  of  many  aniiiuils  that 
the  world  needs  and  with  which  it  would  not  williii<;ly  part. 

VVitli  respect  to  wild  animals  which  by  universal  assent  come  within 
th(^  exception  to  liie  ,i;('Ucral  rule,thelaw,rrei)eat,has  i)rescribe(l  certain 
conditions  ascssential  to  the  acMjuisitiou  of  propel  ly  in  f  hem.  These  con- 
ditions all  point  Id  audi  occujiation  or  control  of  the  animals  by  man — the 
result  of  his  care,  industry,  and  self-denial — as  indicates  his  ca])acity 
to  reap,  regularly,  their  pioduct  without  uuiterially  diminisliin;;'  the 
race  itself.  And  as  such  conditions  nuiy  all  be  ]>erformed  in  the 
case  of  bees,  pijicous,  deer,  and  the  like,  the  law,  in  the  interest  of 
society,  that  its  wants  may  be  supplied,  reco.^ni/es  a  ri;:;ht  of  i»ro]ierty 
in  such  animals  in  every  case  where  the  conditions  have,  in  fact,  been 
])erl;»rmed  and  can  be  uuiiutained.  The  only  qualoy  common  to  all  of 
these  animals  is  that  man  by  art  and  industry  may  acquire  .swc/f  pos- 
session and  (!ontrol  as  will  enable  him  to  render  to  society  the  useful 
servie<%  necessary  to  human  life,  ot'  reai)inm-  from  them  their  re,!;nlar 
increase  without  destroyinji'  the  stocl:.  This  benefit  society  cannot 
have,  unless  it  rewards  the  industry  and  self  denial  so  practiced  with  the 
right  of  iiroperty;  and,  therefore,  if  docs  so  reward  those  qualities.  No 
man  would  cultivate  bees  and  furnish  th(>  market  with  honey  unless  he 
was  i)romiscd  jiropcrty  in  both  the  original  and  new  swarms.  No  man 
v.'(Mdd  furnish  a  jdace  tor  and  "cultivate"  wild  jj;eese,  swans,  and  iiig- 
eons,  unless  they  were  prote(!ted  as  proiierty,  while  they  are  temporarily 
out  of  liis  possession.  No  man  would  care  for  wild  deer  by  enclosinj? 
the  forest,  watching  the  does  when  they  dropjjed  their  fawns,  making 


107 


tliP  first 
Justinian, 
n«l  nojnt^ 
tliai  arise 
t    it  niaj 

quantity, 
'ty,  stiniu- 
>orniillinj;' 
«'(inie  and 
Hicir  prod- 
t  injury  to 
i(Hi  of  tlic 

would   be 
iinals  that 

)inn  within 
bed  ('(M'tain 
'rhcsccon- 
y  nnm — the 
is  capai'ity 
lishin^'  the 
'd    ill   th<' 
iitcrost  of 
;noi)orty 
act,  Imhmi 
»n  to  all  ol' 
such  i)Os- 
:he  nsei'ul 
■ir  vejiular 
■ty  cannot 
'd  with  the 
ilics.    No 
unless  he 
No  man 
;,  and  i)ij;"- 
ini)Ovavily 
enclosing 
IS,  making 


selections  foi-  slaughter,  unless  lie  was  awarded  the  rigid  of  pro])- 
erty  in  respect  to  such  deer.  Out  oCthis  coinlitlon  of  things  aiiscs  the 
rule,  to  which  1  iiave  adverted,  that  whenever,  by  the  art  and  industry 
of  man,  useful  wild  animals  come  so  far  under  coiitnd  that  they  can  be 
and  are  so  der.lt  with  by  him,  Mi  it  he  may  carry  on  this  si)ecies  of 
husbandry  with  thein,  take  their  whoh'  animal  product  for  human  con- 
sumption and  yet  i»reserve  the  stock,  he  has,  by  universal  Jurisprudence, 
a  i)roperlyin  them, and  when  he  can  ii()i,or(h)es  not  <lo  this,  he  has  no 
right  of  property.  This  is  the  true  tcacln'ngof  the  cases  and  authorities 
to  which  reference  has  been  made.  'I'lie  i>roperfy  which  they  lecogni/e 
is  that  most  appropriately  described  by  lUackstone  as  i)roperly  j;r/' 
UKhiNttia))!.  ICxpressed  in  its  sinii)l(\st  and  most  general  form,  the  trnth^ 
whi«!li  th(5  authorities  (!ited  enforce,  is  that  whenever  any  useful  thing, 
not  already  a]»pi'o]niatcd,  is  dciiendent  for  its  existence  on  the  art  and 
industry  of  man — whenever  man  can  truly  say  of  a  particular  useful 
thing  that  it  is  the  inoduet  of  his  care  and  labor,  or  would  not  exist 
without  his  care  and  labor — then  he  may  claim  that  thing  as  his  prop- 
erty. 

])o  not  all  these  conditions  exist  in  the  case  of  the  fur  seals  fre- 
quenting the  Tribilof  Islands?  Are  they  not  met  more  certainly  in 
'•.'..pect  to  these  animals  than  in  the  ease  of  those  wild  animals  wliieh 
the  authorities  nidformly  declare  may  be  appropriated  by  and  become 
the  piopei'ty  of  man?  Are  not  these  fur  seals,  mIicu  on  the  Piibilof 
Islands,  so  completely  in  the  power  of  the  United  States  that  the  entire 
herd  could  bo  taken  in  any  one  breeding  season?  Is  it  not  due  to  the 
care,  self-denial  and  supervision  of  the  United  States  that  these  ani- 
mals regularly  return,  at  statcMl  times,  to  those  islands,  and  remain 
there,  for  such  long  p(n'ii)ds,  and  under  such  circumstances,  that  a 
proper  proportion  of  tiieir  increase  can  be  readily  taken  for  purposes 
of  revenue  and  commerce  without  at  all  endangering  the  race?  Must 
not  the  race  perish — would  it  not  long  since  have  perislied  from  the 
earth — except  for  the  care  and  self-denial  ])ractised  towards  it  by 
the  United  States?  Is  it  not  beyond  dispute  that  pelagic  sealing  is 
certainly  and  i'ai)idly  destructive  of  this  race?  Can  tlii.s  race  be 
preserved  for  the  world  unless  it  is  recognized  as  the  property  of  that 
nation  which,  alone  of  all  the  nations,  can  protect  it  from  cxrermma- 
tion?  The  care  ai id  labor  whi(!h  th^  United  Stares  exerts  in  respect 
to  those  animals  is  to  withdraw  tUo  Pribilof  Islauds  from  all  other  pos- 


p^ 


' 


108 

siblo  uses  aiul  devofo  tlicm  to  tlieso  seals;  to  {?iiar<l  tlioni,  at  onornions 
oxpciiso,  from  outside  depredatioii;  and  to  rofraiii  from  talcin};;  any 
females,  and  only  a  due  inoportion  of  males,  thereby  leaving  the  stock 
nninii)aired.  If  either  one  of  these  forms  of  care  be  withdrawn  the  race 
would  bo  swept  away  witli  a  rapidity  only  comnjensuratc  with  the 
ne}>lect.  Tinman  society  can  have  no  other  interest  in  useful  animals, 
bestowed  for  the  comfort  and  sustenance  of  man,  except  to  preserve  tho 
race  so  that  its  product  may  be  i)erpetually  enjoyed.  If  it  can  obtain 
this  service  from  one  nation  only  it  must  of  iUHressity  employ  that 
nation  and  decree  to  it  the  appropriate  rewar<l.  The  United  States 
is  in  a  position  to  render  that  servi(!e.  Oilier  nations  and  tiieir  subjects 
can  touch  tluise  animals  on  the  sea  ahuie;  but  they  can  touch  them 
only  to  destroy,  because  tlie  animals  cauiuit  possibly  be  taken  on  the 
sea,  to  any  material  extent,  without  speedily  exterminating  the  race. 
The  divine  law,  reason,  justice,  and  the  municipal  jurisprudence  of  all 
civilized  nations,  and  therefore,  as  I  submit,  international  law,  all  <',on- 
cur  in  declariui;  that  the  ri}>ht  thus  to  destroy  that  which  all  mankind 
is  interested  in  preservinj;^  docs  not  exist. 


The  suffffcstion  has  been  earnestly  pressed  that  there  can  be  no 
such  appropriati(Ui  or  occupation  of  these  animals,  as  is  reipiisite  to 
give  property,  except  in  respect  lo  sncli  of  them  as  are  ca])tured  and 
taken  into  actual,  i)liysical  possession.  Tlie  idea  underlying  this 
suggestion  is,  that  (here  cannot  be  any  legal  possession  of  these  fur- 
seals  until  they  are  conlnied  or  shut  uj)  in  an  inclosure  of  some  kind. 
But  this  view  entirely  ignores  all  consideration  of  what,  in  view  of  the 
nature  and  habits  of  the  particular  animals,  is  essential  to  be  done 
in  order  that  they  may  come  under  such  t'ontrol  that  their  increase 
may  be  regularly  taken  for  use,  leaving  the  stock  unimpaired.  As  to 
some  animals  fcrw  nafiira\  no  such  result  can  possibly  be  attained 
unless  they  are  ell'ccfively  I'cstrained  in  tlicir  liberty  by  a(;tual  confine- 
ment. In  ciises  of  that  kind  the  riglit  of  piojierty  is  of  course  lost 
when  manual  custody  ceases,  for  the  obvious  reason  that  the 
increase  of  such  aniaials  can  lun'cr  be  obtained  for  the  use  of 
man  in  the  absence  of  tlieir  actual  continuous  confinement. 
When,  therefore,  the  right  of  pioperty  rests,  as  in  the  case  of 
some  animals  it  unquestiomibjy  does,  alone  on  actual  ])hysical 
custody,  such  right  is  lost  when  the  custody  ceases.  I'.ut,  when 
contintious  con fiiuunent  or  custody  is  not  essential  in  order  th fit  the 
product  may  be  regularly  and  cer^^ai'dy  obtained,  then  such  control  as 


>nonnou8 
cing  any 
the  stuck 
I  the  race 
with  the 
aiiiiiials, 
serve  tlio 
in  obtain 
[)loy  that 
5(1  States 
L'snbjeets 
ich  til  em 
en  on  the 
the  race, 
ncc  of  all 
7,  all  con- 
mankind 


m  be    no 

(juisitc  to 

med  and 

ng    this 

ese  liir- 

nie  kind. 

e\v  of  the 

be  done 

increase 

As  to 

attained 

confine- 

ursc  lost 

that  the 

3  nse  of 

inenient. 

case    of 

physical 

t,  when 

that  the 

iitrol  as 


1G9 

is  consistent  with  the  natnre  of  the  animals  and  as  will  snilico  to 
enable  man  to  establish  a  husbandry  in  respect  to  them,  whcrel)y 
tlie  prodiKit  may  be  regularly  secured,  is  all  thai:  the  law  requires  in 
ori;er  to  give  property.  Hence,  in  the  cases  of  bees,  pij^eons,  and  deer, 
actual  manual  custody  is  not  vital,  but  ownership  and  lc<;al  possession 
coexist  when  there  is  such  control  that  the  annual  increase,  by  means 
of  the  owner's  care  and  industry,  can  be  readily  taken.  VVhellier 
l)Oxing  up,  or  fencing,  or  actual  conlineiuent  in  some  mode,  of  animals 
ferw  naturw,  is  essential,  as  a  Ibuudalion  of  the  ri^ht  of  property, 
irnist  always  de])end  upon  the  nature  of  the  iiarticular  animal. 
A(!tual,  continuous  ])ossession  of  the  entire  race  is  never  necessary  to 
accom])lish  the  ends  for  whicli  society  instituted  property.  Tlie  funda- 
mental inquiry,  in  every  (!;>se,  I  repeat,  is  whether  (he  i)erson  cl. liming 
a  right  of  property  in  particular  valuable  animals,  fcrw  natarfv  iias 
such  general  custody  or  control  of  the  rac^e,  such  capacily  to  deal  irllh  it 
as  a  whole,  that  he  is  capable  of  regularly  taking  their  increase  at  the 
place  to  which  they  habitually,  regularl>  resort,  and  which  his  care  and 
industry  has  provided  as  their  habitation.  This  iiujuiry  is  the  only 
one  at  all  consistent  with,  or  that  will  certainly  secure,  those  benelicial 
ends  for  the  acc»)m])lishment  of  which  the  law  wisely  enables  man  to 
acipiire,  under  given  conditions,  a  propv-rty  in  such  animals,  and 
protects  his  rights  in  that  regard,  as  long  as  he  is  capable  of  utilizing 
their  increase  for  commercial  pur[)oses.  Such  right  of  property  is 
qualilied  only  in  the  sense  that  it  may  be  lo.st  by  the  act  of  the 
animal  in  leaving  the  premises  of  the  owner  and  never  returning. 

As  illustrating  their  view  of  the  question  of  jiossessicm,  the  learned 
counsel  for  Great  Britain  quote  this  passage  frcn  t!".;treatiseof  Pollock 
and  Wright  on  rossession  in  the  Common  Law:  "On  the  same  ground 
trespasser  theft  can  not  at  common  law  be  committed  of  living  animals 
fcfw  7m<H>Yt' unless  they  are  tamed  or  confined.  They  may  be  in  the 
])ark  or  pond  of  a  iic  .on  who  has  tlie  cxrlusive  riglit  to  take  them,  but 
they  are  not  in  his  possession  unless  they  ai(i  so  coiilined  or  so  power- 
less by  reason  of  immaturity  I  liat  they  can  lie  taken  at  ])h'asure  with 
certainty."  p.  f.'3l.  But  tin!  authors  add,  in  tiie  next  succeeding  para- 
giaplis,  these  signi/icant  words:  "An  animal  imce  tamed  or  reclaimed 
nnvy  continue  in  a  man's  possession  although  it  lly  or  run  aliroad  at 
will,  if  it  is  in  the  hahit  of  retunihiff  yct/iildrh/  to  a  pUtve  irliere  it  in 
vndcr  liis  eomple  control.  Such  habit  is  commonly  called  <inl)niis 
revcrlcndiJ^    The  same  authors  say:  "To  determine  what  a>   s  wiil  bo 


■  ■ 


I 


!^ 


1: 


mm 


170 


In 


11  h 


suflicicnt  in  a  ])aiti('ulur  case  wo.  must  attend  to  tliecircninstaiices,  and 
especially  to  the  nature  of  the  thing  dealt  icith,  and  the  manner  in 
which  thiuffs  of  the  same  kind  arc  habitually  used  and  enjoyed. 
•  *  *  Again,  tliere  is  anotlier  and  quite  dillCTent  way  in  whicli 
])ossession  in  law  may  be  indejiendont  of  dc  facto  possession.  We 
may  iind  it  convenient  that  a  i)ossessor  sliall  not  lose  Lis  riglits  merely 
by  losing  i)liysical  control,  and  we  may  so  mould  the  legal  incidents  of 
possession  once  acquired  that  jwssession  in  law  shall  continue  though 
there  be  but  a  sliadow  of  real  or  apparent  physical  ])ower,  or  no  such 
power  at  all.  Thisthe  Common  Law  hasboldly  and  fully  done.  ♦  *  » 
Legal  possession,  in  our  law,  may  continue  even  though  the  object  be  to 
common  appreliension  really  lost  or  abamhmed."    P.  13,  IS. 

The  wliole  subject  of  possession,  as  distinguished  frou)  ownership,  is 
fully  examined  in  Hunter's  IJoman  Law.  "  Possession,"  that  author 
says,  "is  the  occupation  of  anything  with  the  intention  of  holding  it  as 
owner,"  and  "  a  thing  is  said  to  '  e  occiqjied  or  held  when  the  occupier 
is  in  a  position  to  deal  icith  itP  Again,  "In  acquiring  possession  of 
objects  not  before  owned  or  possf  ssed  by  others,  the  question  is  whether 
the  intending  possessor  has  so  far  overcome  the  physical  difiicultics  as 
to  he  able  freely  to  deal  wi'h  the  subject.'"  In  reference  to  possessiim  of 
things  not  before  owned  [res  nullius)  or  possessed,  the  author  says  that 
"in  such  cases  to  aciiuire  possession  is,  at  the  same  time,  to  acquire 
ownership."  Among  the  examples  given  by  him  are  those  given  in  the 
institutes  of  Justinian  and  in  the  Commentaries  of  Gaius,  to  Avhich  refer- 
ence has  already  been  made,  namely,  aninmls  ferw  naturw  which  habit- 
ually go  aw;jy  and  return  to  the  place  ])rovided  for  them.  If  while  they 
are  absent  the  occupier  has  not  abandoned  the  intention  of  dealing  with 
them  to  the  exclusion  of  all  other  persons,  so  as  to  take  their  inciease 
regularly  at  the  places  provided  for  them,  his  possession  remains 
while  they  have  the  habit  of  returning.  Uiuler  such  circumstances,  and 
although  tlie  animal  is  lor  a  lime  out  of  the  view  of  the  occupier,  the 
law  holds  that  neither  "occupation"  nor  the  intention  to  exclude  others 
— bodi  of  which  are  necessary  to  constitute  possession — have  ceased  to 
exist.     JFuuterls  Roman  Law,  2d  ed.,  pp.  otJ,  ,';//,  315,  Title  Possession. 

Of  course  it  is  iu)t  to  be  disjjuted  in  this  case  that  the  United 
States,  by  what  it  has  done  and  can  do  on  the  islands  of  St.  Paul  and 
St.  George,  is  in  a  position  where  it  can  deal  with  this  entire  race  of 
aninjals  so  as  regnhu'ly  to  take  their  increase  without  nmterially  aifect- 
ing  its  existence  or  integrity,  nor  that  it  has  intended  to  a])propriate 
or  "occupy"  this  herd  to  the  exclusion  of  all  other  nations  or  peoples. 


171 


nicos,  and 
manner  in 
I  enjoyed. 
in  wliicli 
sion.  Wo 
its  merely 
icidents  of 
ne  thoiigli 

V  no  such 

»     *     « 

bjectbcto 

icrsliip,  is 

at  autlior 

Uling  it  as 

e  occupier 

^session  of 

is  whether 

iculties  as 

session  of 

says  that 

o  acquire 

veil  in  the 

lich  refer- 

ich  habit- 

v'hile  they 

iling  with 

increase 

remains 

mccs,  and 

II pier,  the 

de  others 

ceased  to 

'ossession. 

e  United 

^aul  and 

3  race  of 

lly  aifect- 

)roi)iiatc 

peoples. 


Sper-nlate  as  we  may  about  some  aspects  of  this  case,  or  difFor  as  wo 
may  about  the  weij^ht  of  evidence  upon  same  points,  this  is  abso- 
lutely certain:  If  the  United  States  had  actual  manual  cuslody  of 
each  of  th(!se  animals,  at  all  times  in  the  year,  it  could  not  propcrli/ i\vi\] 
witli  them  in  any  other  mode  than  that  pursued  by  it,  namely,  to  take 
only  such  part  of  the  males  each  year  as  will  leave  the  race  or  herd  yniin- 
paired  in  its  entirety  for  the  use  of  man.  And  they  can  not  jiossibly  be 
dealt  with  in  that  manner,  and  tcith  such  results,  except  hy  the  United 
States  or  its  licensees,  or  at  any  other  place  than  at  the  hreediny  grounds 
on  ,!s  islands.  All  this  is  so  dearly  established  that  no  one,  having'  the 
slifjhteet  regard  for  the  evidence,  will  assert  the  contrary, 

I  have  referred  to  the  self-denial  practiced  by  the  T'^nited  Rfates  in 
restricting  the  tahing  of  seals  atthe  Pribilof  Islands  to  males  of  proper 
age  and  in  such  limited  numbers  as  will  not  cause  a  substantial  imi)air- 
ment  of  the  stock.  The  Government  of  that  (Country,  let  me  repeat,  has 
the  power,  if  it  chooses  to  exercise  it,  of  taking  in  any  one  year  such  an 
undue  proportion  of  the  seals,  male  and  female,  which  frequent  its 
islands  as  would  give  the  United  States  an  immediate  i)rofit  of  large 
amount.  Its  power  over  the  seals  while  on  the  islands  is  so  absolute 
that,  as  counsel  suggest,  it  could  i)ractically  exterminate  the  race 
almost  at  one  stroke,  r.ut  it  recognizes  a  moral  obligation  resling 
upon  it  to  preserves  not  to  destroy,  a  race  of  animals  useful  to  the  world. 
In  order  that  the  six'cies  may  be  preserved  for  itself  and  for  mankind  it 
abstains  from  sacrificing  the  race  for  the  sake  of  temporary  or  ]»reseiit 
])rolir.  Tliis  abstinence  is  industry  under  another  name.  And  this 
])rinciple  of  abstinence,  or  saving,  is  recognized  by  all  writeis  u|)oii 
economic  (piestions  as  a  potent  agency  in  the  creation  of  wealth  and  in 
the  progress  of  the  world. 

John  Stuart  IMill,  in  his  Principles  of  Economy,  has  said  that  ^^as  the 
wiigesof  the  laborer  is  the  r(Miiunera.tion  of  labor,  so  the  ]»rolits  of  the 
cajtitalists  are  properly  the  remuneration  of  abstinence."  Vol.  3, 
p.  i.S/. 

A  racent  writer  upon  the  ethics  of  usury  and  interest  has  said:  '■'■Ow 
tl'C  hyp;)t1iesis  tliat  all  liave  e(ina]  (q)pi)rtunities  of  social  progress,  the 
social  destroyers  of  its  wealth  deserve  condemnation,  while  those  who 
have  served  the  cause  of  inogress  by  saving  from  ])ersonal  consnm]>tion 
a  i)art  of  the  earth's  produce  and  devoting  it  to  the  improvement  of 
national  mechanism  hav*',  a  claim  to  an  award  iiroportioned  to  their 
service  and  to  the  ellorts  which  they  have  made  in  rendering  it.    These 


u:^ 


172 

arctlic  conditions  of  advaiico  in  civilization  in  tlioarts  and  sciences,  in 
liteiiitiiie,  and  religion.  For  connniiud  over  nature  dillerentiates 
the  civilized  man  from  the  savage.  *  *  *  It  appears,  hence,  how 
.accurate  is  the  coinnion  phrase  which  calls  thrift  'saving.'  Economists 
favor  such  other  woids  as  'abstinence,'  deferred  'enjoyment,'  and  the 
like;  but  to  'save'  expresses  the  primary  idea  that  something  has  been 
saved  from  the  destruction  to  which  mere  animal  instinct  would  devote 
it.  In  such  salvage  lies  the  progress  of  the  human  species  from  sav- 
agery to  godhead,  liy  how  much  has  been  thus  saved  has  the  salva- 
tion, material,  mental,  a.id  moral,  of  the  race  been  achieved."  lUins- 
arffs  Ethics  and  Usury,  189.2,  p.  2C>  et  scq.  "The  origin  of  all  capital," 
says  anothcu'  writer,  "is  abstinence,  and  the  reward  of  this  absti- 
nence is  prolit."    rorry''s  Introduction  to  Political  Economy,  p.  115. 

If  it  be  said  that  a  difficulty  in  the  way  of  .awarding  to  the  United 
States  a  riglit  of  property  in  these  seals  is  theinipossibilit^yof  identify- 
ing any  ])articular  body  of  seals  as  frequenting  or  habitually  resorting 
to  the  Prihilof  Islands,  the  answer  is  that  no  smih  description  of  the 
situation  is  justilied  by  the  evidence  before  us.  It  may  be  that  hero 
and  there,  in  the  great  ocean  separatingthe  American  and  Asiatic^coasts 
may  be  found  stray,  vseattered  fur  seals,  of  which  it  might  be  diflicult 
to  say,  while  they  aie  in  the  water,  and  not  immediately  under  tlie  eye, 
that  they  belong  to  a  particular  herd  of  northern  fur  seals,  Just  as  it 
would  1)0  dillicultto  identify  a  wild  pigeon  as  belonging  to  a  particular 
Hock,  or  individual  bees  as  belonging  to  a  paiticular  swarm  hived  at  a 
named  place.  liut  such  facts  can  not  atl'ect  the  ]>rinciple  involved  in 
such  cases.  The  evidence  is  overwhelming  that  the  migratory  routes 
of  the  northern  fur  seals  frequenting  the  islands  on  the  Asiatic  and 
Japan  coasts  are  se[)arated  by  more  than  800  miles  from  the  migration 
routes  of  the  fur  seals  habitually  resorting  to  IJering  Sea  and  frequenting 
tlie  Pribilof  Islands.  Tliere  is  no  appreciable  intermingling  of  the  Tri- 
bilof  seals  with  other  fur  sealsof  the  same  general  species.  If  there  are 
any  exceptions  to  this  rule  they  are  so  rare  and  relate  to  so  few  seals  as 
to  be  of  no  consequence  in  the  incpiiry  whether  the  fur  seals  frequenting 
or  habitually  resorting  to  the  Piibilof  Islands  do  not  constitute",  substan- 
tially, a  collective  body  or  herd  separate  and  distinct  from  every  other 
henl  of  the  same  species.  That  they  do  constitute  a  separate  and  dis- 
tinct herd  is  so  clearly  established  that  a  stateiiu'ut  to  the  contrary 
might  well  caiise  surprise  to  any  one  at  all  familiar  with  the  evidence 
submitted  to  us,  or  who  is  able  to  consider  it  without  regard  to  special 


173 


ncnces,  in 
erontiates 
ence,  how 
eon  0111  ists 
,'  and  the 
;•  has  been 
lid  devote 
from  sav- 
blie  salv^a- 
I."  Bliss- 
capital,'' 
his  absti- 
.  115. 

10  United 

r  identify- 

resorting 

on  of  the 

that  here 

itie  coasts 

e  difl'unilt 

rtlie  eye, 

just  as  it 

articular 

i\'ed  at  a 

solved  in 

y  routes 

iatic  and 

jii;rafioii 

iuentiii<;" 

■  tlie  I'ri- 

here  are 

seals  as 

neiitiiig 

substan- 

ry  other 

and  dis- 

oiitrary 

\  ideiuie 

special 


interests  depending  npon  the  a(!ti()n  of  this  Tribunal.  The  treaty  ideiiti- 
iies  the  herd  to  which  regulations  are  to  apply  by  the  fact  of  their  habitu- 
ally resorting  to  the  waters  and  islands  of  l>eiing  Sea.  If  the  award  so 
describes  the;n  there  will  be  no  uncertainty  in  the  decree.  National 
legislatures  and  courts  will  find  no  dithculty  in  following  the  award, 
either  in  making  laws  or  in  applying  them  to  the  proper  seals. 

The  only  possible  objection  that  can  be  urged  against  the  claim  of 
ownership  of  these  fur  seal  animals  by  the  United  States  is  the  general 
rule  that  animals  ferce  natune  are  not  subject  to  individual  owner- 
ship. But  we  have  seen  that,  according  to  settled  principles  of 
law,  an  exception  to  this  rule  has  been  handed  down  to  us,  and  is 
everywhere  recognized,  which  admits  of  individual  ownership  of 
useful  wild  animals,  the  supjdy  of  which  is  limited,  and  which,  by 
reason  of  their  nature  and  habits,  and  the  control  or  power  which 
man  may  accpiire  over  them,  are  susceptible  of  ownership,  that  is,  are 
capable  of  exclusive  appropriation.  All  of  these  conditions  are  ful- 
filled in  the  case  of  the  Pribilof  fur  seals.  It  is  not  <lenied  that  they 
are  useful  animals,  or  that  the  supply  is  limited.  The  experience  of 
the  past  proves  that  the  race  can  be  easily  exterminated  if  man  is 
allowed  to  hunt  and  slaughter  them  wherever  they  may  be  found,  on 
the  land  or  in  the  high  seas.  It  is  ecpially  beyond  dispute  that  they 
may  be  exclusively  appropriated,  because  they  come,  at  stated  periods, 
to  the  islands  of  the  United  States,  where  they  remain  under  such  con- 
trol that  the  increase  can  be  obtained  for  the  benefit  of  the  world  with- 
out any  injurious  diminution  of  the  stock. 

The  reason  why  the  doctrines  to  which  I  have  adverted,  have  been 
taught  more  directly  and  fully  in  municipal  jurisprudence  is  that  ques- 
tions of  projierty  more  freciuently  arise  between  individuals.  Natioi'S 
do  not  often  engage  injudicial  controversy  with  each  other  upon  (jues 
tions  of  this  character.  But  there  are  some  things  which  from  their 
situation  are  susceptible  only  of  national  ownershii).  These  have  been 
considered  by  writers  upon  international  law,  and  where  the  same 
grounds  and  reasons  exist  for  the  recognition  of  property,  as  between 
nations,  that  are  found  in  the  cases  determined  by  concurring  munici. 
pal  law,  they  have  conceded  national  ownership.  Illustrations  of  this 
rule  are  the  cases  of  pearl  and  other  oyster  beds,  coral  reel's,  etc.,  situ- 
ated on  the  sea  outside  of  territorial  waters,  in  some  instances  thirty 
or  more  miles.  These  gifts  of  nature  are  exhaustible,  and  would  be 
itoon  exhausted  if  treated  as  res  mUliuSf  and  left  opeu  to  the  iudiscriiui- 


ip 


mm 


li'fiv 


174 

jiato  onjoyiiient  of  tlio  people  of  all  nations.  Tlioy  cannot  well  bo 
enjoyed  unless  they  are  under  partieular  control,  so  that  the  [iroduct 
may  be  taken  at  the  right  season  and  in  limited  amounts.  In  otluT 
words,  they  require  that  sort  of  care,  restraint,  and  sell'denial  whieh 
is  indueed  only  by  a  reeognition  of  property  in  those  who  bestow  smh 
care,  and  practice  such  restraint  and  self-denial.  1  am  relieved  from 
the  necessity  of  showing  that  these  things,  even  when  beyond  territorial 
waters,  maybe  appropriated  as  proi)erty  by  the  nations  in  whose  neigh- 
borhood they  lie,  and  who  choose  to  exercise  the  restraint  and  control 
reipdred  for  tlieir  preservation;  for,  the  opinions  of  great  writers  upon 
international  law  are  explicit  and  concurring  to  that  effect.  And  Great 
Britiaii  in  its  counter  case  and  by  its  counsel  in  argument,  distinctly 
admit  that  they  are  the  subject  of  property.  Great  Britian,  in  its  Coun- 
ter Case,  referring  to  the  legislation  alfecting  the  pearl  fisheries  of  Cey- 
lon, says  that  "the  claim  of  Ceylon  is  not  to  an  excepticmal  extent  of 
water  forming  part  of  the  high  seas  as  incidental  to  the  territorial 
sovereignty  of  the  island,  but  is  a  claim  to  the  products  of  certain  sub- 
merged portions  of  the  land,  which  have  been  treated  from  time  inune- 
morial  by  the  successive  rulers  of  the  island  as  subjects  of  property  and 
jurisdiction."  The  counsel  for  the  British  Government,  enforcing  the 
theory  that  international  law  recognizes  the  right  of  a  state  to  acquire 
the  soil  under  the  sea,  and  consequently  the  products  attached  to  it, 
and  referring  to  theCeyh)n  and  other  fisheries,  say  that  this  claim  "may 
be  legitinnitely  made  to  oyster  beds,  pearl  lislieries,  and  coral  reefs." 

But  looking  at  the  grounds  upon  which  property  in  i)earl  and  other 
oyster  beds,  coral  reefs,  and  the  like,  rest,  it  immediately  appears  that 
those  things  are  incapable  of  occupation  or  possession  in  the  ordinary 
sense  of  tliose  wt)rds.  That  tiiey  are  attached  to  the  soil  under  the  sea 
is  not,  it  seems  to  me,  at  all  controlling  in  the  in([uiry  as  to  property.  No 
such  reason  is  assigned  by  the  writers  upon  international  law.  What 
they  do  say  on  the  subject  has  reference  to  social  utility  aiul  to  the  right 
of  the  nation,  near  whose  territory,  these  things  are  found,  to  enjoy  the 
adrantafjes  of  its 2)ccnJia)' relation  to  them.  iSuch  things  are  exhaust- 
ible; there  is  not  enough  for  all;  if  left  open  to  indiscriminate  and 
unregulated  attack  they  would  be  destroyed;  whereby  a  i)articular 
luition  would  be  injured. 

Puflendorf  says:  "As  for  fishing,  though  it  hath  irnich  more  abund- 
ant subject  iu  the  sea  than  in  lakes  or  rivers,  yet  'tis  manifest  that  it 
nmy  iu  part  bo  exhausted,  aul  that  if  all  nations  should  desire  such 
right  and  liberty  near  the  coast  of  any  particular  country,  that  couutry 


175 


b  well  1)0 
i3  product 
In  otliiT 
ial  wliiuli 
?t()W  such 
n'cd  iioiii 
teni  tori  ill 
)se  iieigii- 
id  contiol 
tors  upon 
.ud  dieat 
distinctly 
itvsCoun- 
csofCcy- 
extent  of 
temitorial 
itiiin  sub- 
nie  inunc- 
porty  and 
rcing  the 
o  acquiio 
hcd  to  it, 
lini  "may 
reel's." 
id  other 
ars  that 
ordinary 
r  the  sea 
erty.    No 
What 
the  riyht 
enjoy  the 
exluiust- 
late  and 
articular 

a  abund- 
;  that  it 
ire  such 
;  country 


must  be  very  nuich  prejudiced  in  this  respect;  especially  sinco  'tis  very 
usual  that  some  particular  kind  of  lish,  or  [)er]iaps  sonu)  more  precious 
commodity,  as  pearls,  coral,  amber,  or  the  like,  arc  to  be  found  only  in 
one  part  of  the  sea,  and  that  of  no  consiilerable  extent.  In  this  case, 
there  is  no  reason  why  the  borderers  should  not  rather  challenge  to 
themselves  this  hai)piness  of  a  wealthy  shore  or  sea  than  those  who 
are  sealed  at  a  distance  from  it."  Law  of  Xattiro  and  Nations,  JJlc.  i, 
Chop.  5,  Sec.  7. 

Vattel,  upon  the  same  general  subject:  "The  various  uses  of  the  sea 
near  the  coasts  render  it  very  susceptible  of  properly.  It  furnishes 
lish,  shells,  pearls,  amber,  etc.  Now,  in  all  these  respects,  its  use  ia 
not  inexhaustible;  wherefore  the  nation  to  whom  the  coasts  belong  may 
appropriate  to  themselves,  aiul  convert  to  their  own  proiit,  an  advan- 
tage which  nature  has  so  i)laced  within  their  reach  as  to  enable  them 
conveniently  to  take  possession  of  it  in  the  same  manner  as  they  pos- 
sessed themselves  of  the  dominion  of  the  land  they  inhabit.  Who  can 
doubt  that  the  pearl  iisheries  of  Bahrcn  and  Ceylon  may  lawfully 
become  property?  And,  though,  where  the  catching  of  iish  is  the 
only  object,  the  fishery  apiiears  less  liable  to  be  exhausted;  yet,  if  a 
nation  have  on  their  coast  a  particular  lishery  of  a  i)rofitable  nature, 
and  of  which  they  may  become  masters,  shall  they  not  be  permitted 
to  api»ropriato  to  themselves  that  bounteous  gift  of  nature,  as  an 
appendage  t>)  the  country  they  possess,  and  to  reserve  to  tlicmselves 
the  great  advantages  which  their  commerce  may  thence  derive  in  case 
there  be  a  sunicient  abundance  of  lish  to  furnish  the  neighboring 
nations^"  Again:  "A  nation  may  appr()[)riate  to  herself  those 
things  of  which  the  free  and  common  use  would  be  prejudicial  or 
dangerous  to  her.  This  is  a  second  reason  for  which  governments 
extend  their  dominion  over  the  sea  along  their  coast  as  lar  as  they 
are  able  to  protect  their  right."  Laiv  of  Nations,  lit.  II,  Chap.  jJd', 
iSecs.  217,  2SS.  This  passage  from  Vattel  is  quoted  by  tSir  Travers 
Twiss,  who  says:  "The  usus  of  all  parts  of  the  open  Sea  in  respect 
to  navigation  is  common  to  all  nations,  but  the  J'nictus  is  distinguish- 
able in  law  from  the  vsiis,  and  in  respect  of  lish,  uv  zoophites,  or  fossil 
substances,  may  belong  in  certain  parts  exclusively  to  an  individual 
nation."     Ch.  XI,  Sec.  l!)l. 

The  essential  grounds  upon  which  the  doctrine  is  placed  in  these 
extracts  is  precisely  that  upon  which  the  similar  decisions  have  been 
made  in  the  instances  from  municipal  law  of  bees,  pigeons,  and  the  like. 
It  is  that  these  properties  would  be  destroyed  and  lost  unless  they 


176 


wi'i'o  i»n)to.('to(l  by  Mint  cure,  iiidiistiy,  nii<l  self dciiiiil  wliicli  Ciii;  bo 
Ciilled  into  iictivity  only  by  I  lie  iciismis  w  Iiicli  tlic  institution  of  propi'ity 
od'ers.  It  is  bociinsc  the  nri^iiboiiiii;  niitions  and  noiio  others  can  ex- 
ercise these  (piiib'ties  iiiid  thus  ix'ilurni  the  .s('ivi<-eor  incseivalion.  It 
is  biiciiuse  tliey  fall  under  the  ^'eneral  pioposition  tliat  wlu'ieany  usei'ul 
thinn'  is  (b'|)('n(h',nt  lor  its  existence  ui)()U  tlie  (!are  and  seU'denial  of 
particular  men,  those  men  hav(!  a  i»ropcrty  in  the  tiiiii};. 

That  the  United  Slates,  by  its  ()\vnerslii[)  of  Tribiiof  Islands,  is  in  a 
e«)nditi()n  to  reap  the  benelit  of  these  animals,  an<l  ])reserve  the  race,  and 
that  no  other  nation,  by  any  acition  it  nniy  alone  take,  can  aircomplish 
these  beneficial  results,  and  that  the  preservation  of  the  race  does  not 
admit  of  tiieir  beiniuf  taken  a.t  any  otiier  place  than  at  tiieir  breeding 
grounds,  are  conclusive  reasons  why  the  law  sluuild  recognize  its  claim 
of  property. 

HIackstone,  observing  that  there  are  things  in  which  a  permanent 
projierty  may  subsist,  liut  wiiich  would  be  found  witiiout  a  proprietor 
had  not  the  wisdom  of  the  law  provided  a  reiiu'dy  to  obviate  tiiis  in- 
convenience, says  that  "the  iegislatiireof  l']nglaiid  has  universally  jiro- 
uioted  the  grand  ends  of  civil  society,  the  peace  and  security  of  individ- 
uals, by  steadily  imrsuing  that  wise  and  orderly  maxim  of  assifjniiiff 
to  everything  enimldc  of  oivncrship  a  h'ual  and  iivlcrmiuute  owncr.''^ 
Chapter  on  Vroperty. 

Sir  Henry  Maine,  in  his  Treatise  on  Aueicnt  Laic,  eh.  <S',  j>.  ^I[),  thus 
states  the  principle:  "Ji  is  only  when  the  rights  of  property  gained  a 
sanction  from  long  practical  inviolability,  and  when  the  vast  majority  of 
objects  of  employment  have  been  subjected  to  private  ownership,  that 
mere  possession  is  allowed  to  invest  the  tlrst  possessor  with  dominion 
over  commodities  over  wiiieh  no  prior  proprietoiship  has  been  asserted. 
The  sentiment  in  which  this  doctrine  oiiginated  is  absolutely  irreeonciU 
able  with  that  infreiiucney  and  uncertainty  of  projirietary  rights  which 
distinguish  the  beginning  of  civilization.  The  true  basis  seems  to  be 
not  a  distinctive  bias  towards  the  institution  of  property,  but  a  presump- 
tion, arising  out  of  the  long  continuance  of  that  institution,  that  every- 
fhiiitj  ouyht  to  hare  an  owner.  When  possession  is  taken  of  a  ^res 
««///««,'  that  is,  of  an  object,  wiiicli  is  not,  or  has  never  been,  reduced 
to  dominion,  the  possessor  is  permitted  to  become  proprietor  from  a 
feeling  that  all  valuable  things  are  naturally  subjects  of  a>i  exclusive 
enjoyment,  and  that  in  the  given  case  there  is  no  one  to  invest  with 
the  rights  of  proi>erty,  except  the  occupant.    The  occupant,  in  short, 


I   (!;ir.  bo 

S  CJlll  cx- 

ilioii.  It 
iiy  useful 
(louial  of 

Is,  is  in  a 
race,  and 
H!Oini)lisli 
)  does  not 
breeding 
;  its  cliilni 

ornKinent 
[)r()l)rietor 
:o  this  iu- 
fsally  in'o- 
Dfiudivid- 
■  assif/ning 
e  oicncr.^^ 

i>in,  thns 
f>ained  a 
ajority  of 
ilii]),  that 
iloniiuion 
asserted, 
leconcil- 
its  which 
'ins  to  be 
jrosunip- 
lat  owry- 
of  a  h'es 
,  reduced 
)!•  fi'oni  a 
exebisive 
vest  with 
iu  short, 


177 

becomes  the  ow.ier  l)ecaaso  all  things  are  presumed  to  be  somebody's 
property,  and  because  no  (me  can  bo  pointed  out  as  having  better  right 
than  he  to  tiio  proprietorship  of  tliis  particular  thing."  Of  course,  as 
we  have  seen  from  the  authorities  cited,  the  possession  of  which  the 
learned  writer  speaks,  is  not  necessarily  actual  manual  possession,  cou- 
tiiuiously  held,  wliich  iu  many  eases  is  impracticable,  but  that  losses- 
sion  iu  law,  that  general  control,  which  may  exist,  altln)Ugh  the  thing 
possessed  is  temporarily  absent  from  its  owner  with  the  anhmis  rcvcr 
icntU. 

So,  ^\v.  Howyer,  in  his  (hmmentarien  on  the  Constitutional  Laic  of 
Eni/hind,  :J(l  iJii,  London,  1<SW,  p.  127:  "I IT.  The  third  primary  right 
of  the  citi/eu  is  that  of  property,  which  consists  in  the  free  use,  enjoy- 
ment, and  disi»osal  of  all  that  is  his,  without  any  control  or  diminution, 
save  by  the  law  of  the  land.  The  institution  of  projjorty — that  is  to 
say,  the  approi)riation  to  particular  persons  and  uses  of  things  which 
were  given  by  (Jod  toall  mankiixl — \^o^  naturnl  law.  The  reason  of  this 
is  not  dillicult  to  discover,  for  tlie  increase  of  mankind  must  soon  have 
rendered  conununity  of  goods  exceedingly  inconvenient  or  impossible 
consistently  with  the  peace  of  society;  and,  indeed,  by  far  the  greater 
number  of  things  cannot  be  maJle  fully  subservient  to  the  use  of  man- 
kind in  the  most  beneficial  manner  unless  they  he  governed  hy  the  laws 
of  excl  usive  appropriation." 

The  suggestion  has  been  much  pressed  that  the  authorities  cited  iu 
support  of  the  claims  of  property  by  the  United  States  refer  to  animals 
I'crw  naturK  that  have  been  either  tamed  or  reclaimed  by  the  art  or 
industry  of  man.  And  it  was  said  that  these  fur  seals  are  neither 
tamed  nor  reclaimed.  But  upon  careful  attention  to  the  reasons 
assigned  by  courts  and  writers  for  the  recognition  of  property,  under 
given  circumstances,  iu  bees,  pigeons,  deer,  wild  geese,  and  swans,  it 
will  become  manifest  that  there  was  no  purpose  to  declare  in  respect 
to  any  of  these  animals  that  they  had  lost  all  of  their  original  wild- 
ness.  Some  wild  animals  may  be  iso  tamed,  or  become  so  subdued 
by  the  treatment  accorded  to  them  or  by  the  ciiviimstances  attending 
their  situation,  as  to  exhibit  very  little  timidity  or  shyness  iu  the  pres- 
ence of  man.  Other  animals,  usually  called  wild,  but  not  gentle  in 
their  nature,  are  more  difficult  to  approach.  Still  others  retain,  under 
all  cir(!umstances,  so  much  of  their  original  wildness,  and  so  much  of 
their  iiiuato  fear  of  man,  that  it  is  imjjossible  to  handle  them  as  can 
often  be  done  iu  the  case  of  some  strictly  domestic  animals.  When, 
11492 13 


178 


i:-^^^- 


tlu'reforc,  the  autliorities  speak  of  booH,  [(ijjoona,  door,  wild  goose,  niul 
swiiiiH,  iis  tjinied  or  roeliumod,  they  inciUi,  mid  could  moiiu  only,  Ihsit 
their  oriyiual  wilduoss  hud,  by  the  art  and  power  of  iiiaii  bejiM)ino  so 
far  dimished,  inodiliod,or  controllod,  that  man  isabhi  to  establish  a  hus- 
bandry ill  respect  to  them,  and  obtain  the  beiiolit  of  their  ineroase  with- 
out iiiipiiiring  theraee.  If  animals, originally  wild, come  under  the  power 
and  control  of  man  to  such  an  extent  that  they  can  be  thus  "culti- 
vated" and  utili/ied;  if  such  power  can  be  ac(piired  over  them  that 
man  is  able,  to  use  the  words  of  Bacon,  to  apjdy  tliem  "to  the  susten- 
tatictn  of  his  being,"  then  they  are  "reclaimed"  within  the  moaning  of 
the  authorities  that  recognize  a  right  of  property,  under  named  (!ondi- 
tions,  in  animals  fcrw  natuiir.  Are  not  these  fur  seals  in  every  sub- 
stantial sense,  so  far  "rcclaiincd"  from  their  original  wildness  that 
they  can  be  utilized  by  man,  with  (piite  as  much  ease  as  if  they  were 
strictly  domestic  animals?  They  are  peculiarly  gentle  and  docile,  and 
easily  approached,  although  tiiey  can  be  so  alarmed  as  to  fear  the  ap- 
proach of  man.  While  on  their  breeding  grounds,  protected  against 
indisciiminale  slaughter  at  the  hands  of  seal  hunters,  they  are  as 
completely  within  the  contnd  and  power  of  the  LTuited  States  as  if 
they  were  so  many  horses,  cows,  or  sheep.  And  they  remain  there,  for 
several  months  in  every  year,  under  the  power  and  control  of  man, 
without  any  disposition,  under  ordinary  circumstances,  to  flee  from,  or 
even  to  become  disturbed  by  his  presence.  There  is,  consociuently, 
every  reason  why  in  tiie  interests  of  society,  that  its  increasing  wants 
may  be  supplied,  they  should  be  regarded,  for  all  puri)oses  of  property, 
as  reclaimed  aniumls. 

In  the  course  of  the  argunumt  the  question  was  often  x)roiiounded 
whether  a  recognition  of  the  claim  of  the  United  States  to  own  this 
herd  of  seals  wouhl  not  seriously  impair  the  right  which,  by  universal 
consent,  belongs  equally  to  all,  to  take  and  a])propriate  to  their  own 
use  such  wild  animals  as  have  not  been  previously  appropriated  by 
actual  conlinemeiit,  or  by  some  other  mode  that  deprives  them  of  their 
natural  liberty.  To  this  it  may  be  answered,  that  the  principle  which 
I  have  maintained  has  no  application  to  those  useful  animals  in 
respect  to  which  the  care,  industry,  aiul  labor  of  man  is  ineffect- 
ual or  unnecessary  to  utilize  their  increase,  while  i)reserving  the 
stock.  Some  of  them  cannot  be  brought  within  the  leach  or  efforts  of 
man;  some  have  not  the  sure  instinct  of  returning  to  the  same  idace  so 
that  they  can  be  identified;  and  in  respect  to  others,  nature  has  made 
such  liberal  provision  for  the  needs  of  mankind,  and  for  siicb  an  enor- 


179 


isc,  and 
ly,  that 
some  HO 
ilialnis- 
se  with- 
le  power 
i  "culti- 
cin  that 
5  sustt'ii- 
aiiinpf  of 
■d  coiuli- 
ery  sub- 
ess  that 
iiey  were 
)cile,  and 
r  tlic  ap- 
I  against 
f  are   as 
,tes  as  it' 
;here,  for 
of  man, 
from,  or 
uently, 
jv  wants 
operty, 

lomided 
3WU  this 
iiiiversal 
leir  own 
iated  by 
of  their 
e  whieli 
iiiials  in 
ineftect- 
Ing  tlie 
'tfoits  of 
place  so 
as  made 
an  enor- 


mowA  iii('rea.s(>  in  the  number  of  the  animals,  tliat  there  is  no  oeeasiou 
for  a  recojLfiiition  of  piopeity,  («ither  as  a  reward  ol'  man's  industry  or 
for  tiie  presevation  of  the  laee.  A  reco^jfuitiou  in  favoi'  of  tlie  United 
States  of  proi)erty  in  the  I'ribilof  iierd  of  seals  doea  not  by  any  means 
place  all  wild  animals  in  the  same  eates'ory.  The  conditions  wiiieli 
exist  in  the  case  of  those  wild  animals  which  are  admittedly  subjects 
of  apjnopriation  as  property  do  not  exist  in  the  case  of  all  animals 
ferw  Hdtnra'.  And  we  need  only  iiuiuire  whether  those  conditions  ex- 
ist in  the  case  of  tliese  fur-seals.  If  they  do,  our  duty  is  to  apply  the 
principle  which  those  conditions  sugj;est,  \vhatev<'r  maybe  the  ditli- 
culty  of  ai)[)lyinj;  it  in  the  case  of  some  wild  animals  o  whi(;h  counsel 
have  referred  in  ar<;ument. 

It  is  scarcely  necessary  to  say  that  these  principles,  in  the  Judgment 
of  some  courts,  have  no  applitiatiou  to  noxious  aninnUs,  that  can  sub- 
serve no  useful  purpose  and  nniy  be  danyerous  to  the  comnninity, 
«'xcept,  perhaps,  when  they  are  actually  conlined  an<l  aie  kei>t  for 
amusement  or  for  scientilic  purposes.  An  illustration  of  this  distinc- 
tion is  foun<l  in  UdiDKoi  vs.  Mockctt  decided  by  the  court  of  King's 
Ikmch,  and  reported  in  2  Baru,  tO  CVt'.s'.v.,  pp.  y.'it,  JKiT-S,  913-4,  38,  43, 
44.  The  declarati(»u  in  that  case;  stated  that  the  i)laintitf  was  pos- 
sessed of  a  close  of  land  with  trees  growing  thereon,  o  which  rooks 
had  been  used  to  resort  and  build  their  nests  and  rear  their  young 
by  reas(m  whereof  he  had  been  used  to  kill  and  take  the  roolvs 
and  the  young  thereof,  from  which  great  profit  and  advantage  hail 
accrued  to  him;  yet  the  defcinlant,  wrongfully  and  maliciously,  intend- 
ing to  injure  the  plaintitf  and  alarm  and  drive  away  the  rooks,  and  to 
cause  them  to  forsake  the  trees  of  the  plaintitf,  wrongfully  and  injuri- 
ously caused  guns  loaded  with  gunpowder  to  bo  discharged  near  the 
plaintiff's  close  and  thereby  disturbed  and  drove  away  the  rooks,  in 
consequence  of  which  the  plaintitf  was  prevented  frmn  killing  the 
rooks  and  taking  the  young  thereof.  The  plea  was  not  guilty.  Bayley, 
J.,  said:  "The  i»laintitf  docs  not  state  any  special  right  in  hin«  to  have 
the  rooks  resort  to  his  trees;  he  relies  upon  that  general  right  which 
all  the  King's  subjects  have,  and  he  describes  the  protit  to  aris*;  to  him, 
not  from  the  eggs,  but  from  killing  the  birds  and  their  young.  To 
maintain  an  action  the  plaintitf  must  have  had  a  right,  ami  the  defend- 
ant must  have  done  a  wrong.  A  man's  rights  are  the  rights  of  persomil 
liberty,  pcu-sonal  security,  and  private  jtroperty.  Private  property  is 
either  property  in  possession,  ])roperty  in  action,  or  property  that  an 
individual  has  a  special  right  to  acquire.    The  injury  in  this  case  does 


f 


ISO 

not  iifloct  any  ii'ulit  of  porsoiiiil  security  or  iicrsonal  liborty,  nor  any 
]iro|M'rty  iu  possession  or  in  iictinii;  and  liic  (|n«'sljuM  then  is,  wlicllier 
tliere  is  any  injnry  to  any  projierty  llu'  plaint  ill'  liad  a  specrial  rinlit  to 
ae(piire.  A  man  in  trade  has  a  rij;lit  in  his  fair  chances  of  |)rnlit, 
and  lie  {fives  np  time  ami  capital  t  » obtain  it.  It  is  for  th<'  jiood  of  the 
public  that  he  should.  Ibit  has  it  ever  been  held  that  a  man  has 
a  riyht  in  the  chance  of  obtaining'  aninnds /crrt'  uatnra;  where  he  is 
at  no  expense  iu  enticinjjf  them  to  his  premises,  and  \vlu'i(^  it  may  be 
at  leas'",  (piestionable  whether  they  will  be  of  any  service  to  him,  and 
whether,  indeed,  they  will  not  be  a  nuisance  to  the  lU'iyhboi'hood  ? 
This  is  not  a  claim  proptar  impofrnfiam,  because  they  are  youn{;',/>/'oy</t'r 
Holiim,  because  they  are  on  the  phiintitrs  land,  or  propter  iiidiislriinn, 
because  the  plaintilf  has  brought  them  to  the  place  or  reclainnd  tlu'in, 
but  propter  itsnm  ct  eonsttetudenem  of  the  birds.  They,  of  their  own 
choice,  and  without  any  e.\i)enditure  or  trouble  on  his  part,  have  a  pre- 
dilection for  his  trees  and  are  disiiosed  to  resort  to  them.  Ibit  lias  In; 
a  lej;al  right  to  insist  that  they  shall  be  permitted  to  do  so?  Allow 
the  right  as  to  these  birds  and  how  can  it  be  denied  as  to  all  others? 
In  considering  a  claim  of  this  kind  the  nature  and  properties  of  the 
bii'ds  are  not  inunaleiial.  The  law  makes  a  distinction  between  ani- 
unds  lifted  for  food  and  those  which  are  not;  between  those,  which  are 
destructive  to  private  i)roperty  and  those  which  are  not;  between  those 
which  have  received  protection  by  conunon  law  or  by  statute  and  those 
which  have  not.  It  is  not  alleged  in  this  declaration  that  these  rooks 
were  lit  for  food;  and  we  know  in  fact  that  they  are  not  generally  so 
used.  So  far  from  being  protected  by  law  they  have  been  h)oked  u|)on 
by  the  legislature  as  destructive  in  their  nature,  and  as  nuisances  to 
the  neighborhood  where  they  are.  That  being  so,  surely  a  party  ciiu 
have  no  right  to  have  them  resort  to  his  lands,  to  the  injury  ot  li!8 
neighbors;  and,  conse([uently,  no  action  can  be  maintainable  against 
a  person  who  prevents  their  so  (h)ing.  *  *  *  They  certaitdy  answer 
the  desciiption  of  animalsy'tTfT'  natitrce.  They  are  not  protected  by  any 
statute,  but  on  the  contrary  have  been  declared  by  the  legislatuic  to 
be  a  nuisance  to  the  neighborhood  where  they  are.  That  being  so,  it 
is  quite  clear  no  person  can  claim  a  right  to  have  them  resort  to  his 
lands,  nor  can  any  person  become  a  wrongdoer  by  preventing  their  so 
doing.  Keehle  v.  Ilickeriitifill  bears  a  stronger  resemblance  to  the  i)res- 
ent  than  any  other  case,  but  it  is  distinguishable.  There  it  was  decided 
that  an  action  on  the  case  lies  for  discharging  guns  near  the  decoy 


181 


|)oii<l  of  aiioflirr,  willi  (lt'sij;n  to  (Inninify  tlu>  owium"  liy  IViLilitciiin}; 
jiwuy  tlio  wild  low!  r«'sortin;i  tlu'i«>lo,  l>y  wliirli  lliii  wild  low!  iirclVi^ilit- 
ciu'd  inv;iy  and  t  lie  owner  daiiiniliccl.  IJntin  tlioliist  jilat-oit  isohsnva- 
bh'  that  wild  fowl  are  |)iot<'ct<'d  by  tlir  statute  (LT*  11.8,  eii.);  tliiit  tlicy 
constitute  a  known  aitirle  of  foo(],  and  tliat  a  person  keeping'  up  a 
decoy  exponds  money  ami  eniitloys  ski!!  in  takinj:'  tliat  wldeli  is  of  use 
to  the  public.  It  is  a  |>n)iita!de  mode  of  emi)loyin<>'  his  land,  and  was 
<'onsidered  l>y  Lord  Holt  as  a  deseiiption  of  trade.  Tliat  ease,  there- 
fore, stands  on  adilVerent  foundation  from  this.  All  the  other  instanees 
which  were  referred  to  in  the  ariiiiment  on  the  part  of  the  plaintilf,  are 
«'iis',s  of  animals  specially  protected  by  acts  of  I'arliann'nt,  or  which 
are  <'learly  the  subject  of  property.  Thus  hawks,  lalcmis,  swans,  i)ar- 
tiid<;es,  pheasants,  pigeons,  wild  ducks,  nuillards,  teals,  wid<;eons,  w  ild 
jjeose,  black  j-ame,  red  yame,  bustards,  and  herons  are  all  reco};;ni/ed 
by  dilleront  statutes  as  entitled  to  protection,  and  conseciucntly,  in  the 
eye  of  the  law,  are  lit  to  be  preserved.  Uees  are  pro])erty,  and  are  the 
subject  of  laiceny.  Fisheries  are  totally  dilVerent.  The  (isli  can  do  no 
harm  to  anyone  and  constitute  a  well-known  article  of  food.  (Ipon  the 
{{round,  therefore,  that  the  i)laintil!'  had  no  i)ro|)erly  in  these  rooks, 
that  they  are  birds/cm-  uitfunv,  destructive  in  their  habits,  and  not 
protected  either  by  conunon  law  or  by  statute,  and  that  the  plaintiff  is 
at  no  expense  with  rejjard  to  them,  we  are  of  ojjinion  that  the  plaintilf 
had  no  iij;lit  to  insist  upon  havinjj  them  in  his  neighborhood  and  that 
he  can  nor  maintain  this  action." 

The  case 'jf  Kcchlc  v.  UicherhuiUl  [11  East,  .''>7/),  above  referred  to, 
illustiates  the  rule  in  respect  to  animals  J'orac  naturae  that  are  useful. 
That  was  an  action  on  the  case.  The  plaintitl'  was  the  owner  of  a 
decoy  pond  to  which  wild  fowl  used  to  resort.  At  his  osvn  costs  and 
charji'es,  he  prepared  and  procured  di\o!s  decoy  ducks, nets,  machines, 
and  other  ai>plianees  for  the  decoyiiiii  and  takinji'  of  wild  fowl,  and 
enjoyed  the  benelits  in  takinj;  them,  Tiie  <lefendant,  knowing  these 
facts,  and  intendinji'  to  injure  tlu;  i)laintitr  in  his  vivary,  and  to 
fright  and  drive  away  the  wihl  fowl,  used  to  resort  thither,  and  to 
deprive  him  of  his  profit,  fre(]uently  discharged  loaded  guns  at  the 
head  of  the  pond  and  vivary,  whereby  he  drove  away  the  wihl  fowl 
then  in  the  pond.  There  was  a  verdict  for  the  plainrifi".  Chief  Ju.stice 
Holt  said:  "I  am  of  opinion  that  this  action  doth  lie.  It  seems  to 
be  new  iu  its  instance,  but  is  not  new  in  the  reason  or  i)rinciple  of  it. 
For,  lirst,  this  using  ur  making  u  decoy  is  lawliil;   secondly,  this 


182 

omployiiHMif of  liis  <;n)nii(l  lotlint  use  is  ])ro(Ual)lo  fotlio  ])liiintilT",  as  is 
tliiisUill  iuid  iii;iiia.n<Miit'iit  of  (liiit cinployiiM'iil.  As  lo  jii(>  fiist,  cvi'i'y 
iiian  thai  lialli  a  iiioju'ity  may  enjoy  It  lor  liis  jilcasinc  and  ])iolit,  as 
for  alliuinj;  and  i)ro('iU'ing  (lucks  (o  come  to  liis  pond.  'J'o  learn  tlie 
trade,  of  seducing;  other  ducks  to  come  llu're  in  order  to  be  taken  is 
not  proliihited  either  by  the  law  of  tlie  land  or  tlii^  moral  law;  bit.  it 
is  as  lawful  (o  use  art  to  seduce  them,  to  catcli  them,  ami  destroy  them 
for  the  use  of  maidiind  as  to  kill  and  destroy  wild  fowl  or  tame  cattle. 
Tiien,  wiieii  a  man  us(^th  his  art  or  his  skill  to  take  them  to  sell  and 
dispose  of  for  his  profit,  this  is  his  trade;  and  he  that  hinders  another 
in  his  trade  or  livelihood  is  liable  for  an  action  for  bo  hindering  him. 


"And  when  we  do  know  that  of  lonp;  time  '•>  the  Kinjidom  these  aiti- 
luial  contrivances  of  decoy  ponds  and  decoy  dm-ks  have  been  used  for 
euticinji  into  tliese  jtonds  wild  fowl  in  order  to  be  taken  for  tlu5  jirofit  of 
tlie  owner  of  tiie  jiond,  wlio  is  at  the  expense  of  servants,  enjjines,  and 
other  manajicment,  wlierel>y  the  markets  of  the  nation  may  be  fur- 
nished, there  is  yreal  reason  to  yive  encoura{>emont  thereunto,  that 
tlu^  i)eoi)le  who  are  so  instrumental  by  their  skill  and  industry  so  to 
furnish  the  markets  should  reap  the  benelits  and  have  tiieir  action. 
IJut.  in  short,  that  which  is  the  true  reason  is  that  tliis  action  is  not 
bronulit  to  recover  damage  for  the  loss  ol'  the  fowl,  but  for  the  dis- 
tuibanc(>."'  In  the  rejxirt  of  the  sam(^  case  in  [11  Modern,  7')),  the  Chief 
Justice  says:  <' Suppose  the  deleudant  had  shot  in  his  own  j;ronnd; 
if  he  had  occasion  to  shoot  it  W(»uld  be  one  thing,  but  to  shoot  on  i)ur- 
pose  to  dannige  the  idaiutilf  is  aiu)ther  thing  and  a.  wrong." 

The  two  cases  last  cited  are  alike  in  that  in  each  the  plaint  ill' sought 
to  lecover  danuvges  for  a  malicious  injury  to  an  alleged  industry.  In 
llaunnm  vs.  Mockctt,  the  alleged  industry  was  based  upon  what  the 
l)laintilV  had  done  to  secure  the  coming  of  the  looks  to  his  lands.  IJut 
as  these  animals  were  fcy(v  luitiinr  and  were  held  not  to  be  useful,  the 
plaintilT' had  no  property  in  them  whicdi  could  be  the  basis  of  an  indus- 
try that  the  law  would  i)rotect  against  such  acts  as  those  complained 
of.  in  lucble  vs.  Hivleriniiill,  altliough  the  action  was  not  brought  to 
recover  damages  for  the  loss  of  the  ducks  frightened  away  from  the 
l)laintilf's  land  by  the  defendant,  its  foundation  was  necessarily,  that 
the  ducks,  although. /'cm'  natiinr,  were  useful,  and  eotild  l)e  the  basis  of 
an  industry  which  the  law  could  protect  against  the  wrongful  acts  of 
others  to  t'.t^  injury  of  the  jjcrsmi  who  owned  the  phiee  to  which,  by 
his  care,  they  habitually  resorted. 


tiir,  as  IS 
st,  cvoiy 

earn  tlie 
'  taken  is 
^v;  bit  it 
hoy  tliciii 
lie  cattle. 
I  sell  ami 
•s  unollii'T 


iijj,  him. 


tliese  avti- 
■11  usi'd  tor 
w  piolit  of 
i<>iiu^s,  aiul 
nay  hv  fnv- 
c'lmto,  that 
aistry  so  to 
lioir  action, 
ction  is  not 
lor  tho,  (lis- 
tlie  Chief 
1  o  roil  11(1; 
ool  i>n  l»ir- 

ti  It' sou  Jill  t 
iistry.     In 
what  the 
uuls.    r>ut 
usel'ul,  the 
t'  ail  imlus- 
coiiipiainod 
broii.ii'ht  to 
»y  from  the 
■isarily,  that 
tlie  basis  of 
lofiil  a»'ts  of 
o  which,  by 


183 

Tt  was  sn^'ffcstcd  in  aiirumont  that  if  tlic  claim  of  the  United  States 
to  own  the  Pribilof  fur  seals  be,  sustained,  tiie.  result  would  be  to 
establish  a  monopoly  in  its  lii\or,  by  (>xcludiii,<;-  the  "iti/.e.iis  and  sulijeets 
of  other  nations  fioiii  eii,t;a,niiij;'  in  the  business  of  taking-  seals  in  tho 
o|*en  waters  of  the  sea.  l>ut  surely  this  can  not  constitute  any  reason 
why  the  elainj  should  not  be  sustained  if  it  be  well  founded  in  law.  Such  an 
obje(!tion  could  be  made  to  propc^rty  in  anythiiif^;  for  all  property  is  mo- 
nopoly. The  worhllias  no  interest  in  i»erinittinx  the  dcstru(;tionof  iiraco 
of  animals  best(»wed  for  the  well-bein<;-  an<l  subsistence  of  mankind.  It 
so  haiipens  that  the  United  States,  Ijy  its  owiieiship  of  the  I'ribilof 
Islands,  is  iti  a  situation  to  care  for  aiu*  i)reseive  these  seals  for  tho 
benelit  of  the  world  and  lo  furnish  the  means  of  govoriimeiit  while 
takinj-' tho  annual  increase,  which  ultimately  };()es  into  commerce.  If 
its  claim  be  denied,  and  pelagic  sealers  are  unrestrained  in  the  takiiifjj 
of  these  animals  in  tho  open  seas  in  tho  destructive  mode  ])iacticcd  by 
them,  tho  species  will  soon  bo  oxtorniiuated.  It  is  idle  to  say  that  the 
existonco  of  those  fur  seals  can  i)ossibly  bo  secured,  if  pelagic  sealing 
to  any  material  or  pr!)!i!iblo  extent  is  ])oiiuitted  in  liering  Sea,  or 
in  any  part  of  the  Noith  I'aialic  Ocean  where  they  may  be  f(»und  while  on 
their  way  back  to  theii  h^)mo  on  tho  Prihilof  Islands.  If,  therelbro, 
pelagic  sealing  is  suppressed  and  the  taking  of  these  seiils  is  restricted 
to  their  breeding  grounds,  where  alone  it  is  possible  to  make  a  discrimi- 
nation as  to  the  sox  of  tlie  animals  and  as  to  the  number  »,iilc(t  for  use, 
the  result  will  bo  the  preservation  of  the  race  to  the  world.  TIh',  object 
of  the  treaty  under  v  hie  h  wc  are  proceeding  wan.  -•*  the  learned  Attor- 
ney-General of  (irr'at  llritain  concodod  in  arj;uii*«riiiit,  tw  .-^rure  those 
fur  seals  against  externiinatioii,  without  referfuc*-  to  *r.y  i*tN**Mal  iuter- 
ests  X)i)Ssessod  either  by  the  United  States  or  i»v  j,*^.U>>;m  «*ycii»Ts.  Aiul 
as  they  may  be  prosorviil  by  the  ITiiitod  Stati       i     •.'■<       .  hitions 

it  has  established  for  tho  taking  of  male  >eals  ^i  tli(  ii  ^ntiiiids, 

and  cannot  be  prcucrveil  at  all  if  nnre.straiu^-4  f^fln^tf  ^ni^'uii  •  •>iitin.ncH, 
that  fact  is  of  ooncliisivo  weight  in  deto  aiining  whetJiei  riw  light  of 
property  in  them  should  bo  awarded  to  the  United  ^^  tor,  acceding 

to  all  the  authorities,  a  right  of  property  in  aniui.il-  "  /•*  it^Mrtf  iW\^'\\*^* 
upo>)  tho  capa<!ity  of  the  i)arty  asserting  such  a  rissUt.  ex.ebi*ivoly  t^ 
take  the  increase  of  such  animals  from  time  to  time  witbk<*»it  d«'str«»ying 
or  imi)airing  tho  stock.  If,  therefore,  an  awanl  of  property  in  favor  of 
the  United  States  will  give  that  country,  practically,  a  ii*w«<>|wily  jii  the 
business  of  taking  these  fur  seals  tor  use,  it  wiil  bo  a  n>m»<#i*»4y  wliU^b 
all  civilized  nations  are  interested  in  fostering.     When  u  monopolj  iu 


ll' 


n 


184 

a  partit'ular  nation  is  tlioonly  or  tlic  l»ost  inodo  of  iJi'csoivini:'  to  inrii  a 
jiil't  of  nature,  tlicMi  tlie  world  is  not  inlcicstod  in  l)r('al<iiig  it  d(»\vn  in 
order  simply  Mii'^  a  lew,  avIius(>  nictlidds  of  ntilizin^  tliat  jiil't  will 
surely  destroy  it,  Jiiay  realize  sli.i'lii  teiiiporary  ,uain.  The  natioi.a  do 
not  bej^rudi^e  the  enjoyment  by  Great  l^ritain  and  some  of  its  colonies 
of  a  monopoly  in  pearl  and  otlier  fisheries  oil!"  tlieir  ]'esp(  ctive  coasts, 
tar  out  in  the  open  sea  beyond  territorial  waters.  And  so  of  the  coral 
in  which  I'rance  and  Italy  are  interested,  and  of  th(>  fisheries  on 
which  the  prosperity  of  Norway  so  ninch  de[)ends. 

Thi.s  case,  then,  alt liou.n'h  new  in  its  si»cci;il  circumstances,  because 
relatiufj'  to  animals  whicli,  in  many  respects,  are  unlike  all  other 
known  animals,  is  not,  to  use  the  words  of  Chief  Justice  Ibdt,  new  in 
the  rea.son  or  pi'inciples  ol  it. 

Brinyiiiji'  to,!;etiier  tlie  i»rincipal  facts,  and  the  conclusions  arisiu<>; 
from  them,  the  case  presentid  by  tlie  Tuited  States,  and  ni)on  which  it 
asks  a  judji'meut  at  the  hands  of  this  Tribunal  snstaii'.in,u  its  claim  to 
own  these  seals,  not  only  while  they  aie  at  tlieir  bretdiiii;'  j;rounds,  but 
when  temporaiily  absent  therefrom  in  tlie  high  seas  i  i  ([uest  of  food,  is 
as  follows: 

{(i)  This  race  of  animals  is  exhaust  ilile  in  nunilierand  is  valuable  for 
purposes  of  raiment  and  food.  They  are  not  a  pioduct  (»!'  the  sea,  for 
they  are  eoncei\ed  on  land,  can  not  be  concci\  t'd  in  t  he  ocean,  and  must, 
of  neeessity,  comi'  into  existence,  and  for  a  consideiable  part  of  each 
year  abid<'.  upon  land. 

[h)  When  away  from  tlieir  land  iHnne  it  is  tor  temporary  pnri)oses, 
and  with  the  alisolute  certainty  that,  unless  waylaid  and  killed  by  jiela- 
g'w  sealers,  while  tliey  are  beycuid  territoiiiil  waters,  tliey  will  return  to 
that  honu'  at  a  particular  time,  and  remain  there  for  several  months, 
in  every  year,  duriun  wliich  a  proper  proportion  of  their  iiu'iease 
eau   be   readily  taken,  leaving  the  herd  unimpaired  in  its  integrity. 

((')  The  land  on  which  they  were  born — tae  islands  of  St.  Paul  and  St. 
(leorge — beeanu'  the  property  of  the  riiited  States  in  1S('»7.  and  has 
been  imiintaiued  lor  more  than  a  ccntiuy,  first,  by  liussia,  and  after- 
Avards  by  the  United  States,  exclusively  ;is  the  habitation  of  this  race, 
to  wiiich  they  could  resort,  in  safety,  and  to  wjiich  tor  a  peiiod  so  long 
that  the  memory  of  man  runneth  not  to  the  contrary,  tht\v  have 
regularly  resorted,  tor  Tlie  purjio.se  of  breeding  and  reaiing  their  young', 
and  ol  renew  iiig  their  coats  of  fur. 

(d)  Whiieou  tUeishuuls,duringthe  l»rei'dingseasou,tlieyare  pi'oleeted 


o  in;'ii  a 
down  in 
nirt  will 
tioi.s  do 
colonics 

'    COilStS, 

lie  coral 
ovics   on 

bccansc 
ill  other 
t,  new  in 

s  arisin.u: 
wiiicli  it 
cliiin  to 
mds,  bat 
)t'  food,  is 

uablc  for 
sea,  for 

id  n\nst, 
ol  cacli 

)nri)os('S, 
by  pcla- 

rctmn  to 
months, 
increase 
,mity. 

Il  and  St. 
and  has 
nd  after- 

Ihis  race, 


■^0  long 
have 


lev 


ryouuy, 


Irotccted 


185 

at  .iri'cat  e\i»iMise  ajTiiinst  iudiscriiniinitc  slanjjhtor  by  raiders  and  seal- 
hnnters  in  addition,  and  (hat  thi\v  may  not  be  nndnly  distinbcd 
wliilf  on  the  i  need  inn'  ,i>ronnds,  the  I'nitcd  States  excludes  all  jicrsons 
IVoiii  the  islands  of  St.  I'anl  and  St.  (iccu'/^c,  except  such  as  are  re(inired 
in  connection  with  the  industry  there  condiu'ted  under  its  authority  or 
license — tlnit  indiistrv  beinj;'  the  takin.u',  for  jairposes  of  revenu(^  and 
commei'cc,  such  jnoportion  of  males  a.s  can  be  safel\'  taken  without 
impairinff  the  stock,  and  forbidding  the  killin<>-  of  all  female  seals. 

{(')  0\\  the  islands  )f  St.  I'anl  and  St.  (Jeorj^e,  duriUj.''  the  season,  and 
at  no  othi'i'  i)la'.e,  noi'at  any  other  timi'.  ca  i  discrimination  be  made  in 
respict  t(»  th(^  sex  of  seals  taken  for  use.  Such  discrimination  is  im- 
possib'e  when  the  seals  arc  taken   in  the  ocean. 

(/)  The  taking  of  those  seals  in  tlu' hi  j:h  seas  to  any  extent  tliiit  is]>ro(it- 
ablc  to  those  enjia,nfd  in  it  iuNolvcs  the  very  existence  of  the  race, 
be 'ansc  the  killinji'  by  jjcla^iic  hunters  <if  seals  heavy  with  youn^,  or 
suckline' mothers,  or  impre;;nated  lenuiles,  will  inevitably  result  iu  the 
speedy  extermination  of  the  race. 

{(l)  So  that  the  takiii<i'  of  these  animals  at  the  breedinf;  <;iounds  for 
commercial  purposes,  under  re.iinlations  that  e;iable  a  i)roi)er  proportion 
of  males  to  be  taken  for  use,  and  tiic  killinj;-  of  them  iu  tlie  o])en  wafers  of 
the  ocean,  where  no  disci  iminatim  as  to  sex  is  possible,  is  the  dincreu(!C 
bctwt'CP.  lU'cscrvinu  the  lacc  for  the  Wcnefit  of  tiie  world  and  its  speedy 
externnnation  for  the  bcnelit  of  a  few  Canadian  and  American  sealers 
prosecuting;-  a  business  so  barbaions  in  its  metiiods  thiit  I  resident 
Harrison  fitly  clun  acti'ii/ed  it  as  a  ciinu'  a;.;ainst  natuie. 

(/()  The  coinli  «4  of  thcMc  aidnmis  from  Near  to  year  to  the  Tiibilot 
Islands  and  their  ai)idiii};  (lieii»,  8o  that  their  increase  can  be  taken  for 
num'suse  withmit  impairing;  the  stock,  beinji,- due  entiiely  to  the  care  and 
supers  ision  of  the  rnifiMl  Stales,  if  that  care,  industry,  and  super\  ision 
bi',  omitted  or  withihawn,  the  speedy  destru(;tion  of  the  lacc  will  (!er- 
taiidy  follow.  The  smne  result  will  inevitably  follow  if  itelaj-ic  seal- 
in<i'  be  rccojiui/cd  as  a  rifilit  nndci  international  law,  to  be  restrained, 
if  at  all,  or  ell'ectually.  only  by  a  convention  to  which  <(// the  <;reat  mari- 
time nations  of  the  earth  are  partii-s— a  con\cntinn  width  all  kiH)w 
could  never  be  obtaiiM'd ;  and  w  liich.  if  |>ox>;ilile  to  be  obtained  under 
aiy  circumstances,  could  not  he  had  until  its  objci't.  the  lueseivation 
of'  these  aninnils  loi'  the  use  of  the  world  had  been  defeated  in  the 
meantime  by  the  extermination  of  tiie  race. 

((J  On  the  other  hand,  a  recoynilion  of  the  i  ii;lit  ol'propeily  asserted 


186 


is; 
N 


l)y  tlio  1 -iiit('(l  States  in  tliese  aiiiiuals  would  socnrc,  hoyond  nil  qnes 
ti(»ii,  llic  prosorvalioii  ol'  tlics.e  animals.  Natural  justice,  right  reason, 
and  the  interests  of  mankind,  demand  that  this  reeopnition  be  jjiven 
])y  this  Tribunal;  for  the  United  States,  alone  of  all  the  mttions,  holds 
snch  lelations  to  these  aninnils,  that  it  can  preserve  the  race  fioni  ex- 
termination while  utilizin,i;itf()r  the  piirp(ses  for  which  it  was  bestowed 
upon  man.  No  possible  harm,  but  only  good,  can  eoine  from  a  Judg 
meat  to  that  effect.  vSueh  a  Judgment  will  declare  that  the  law  of 
initions  is  ade(iuat(i  to  preserve  valuable  animals  whose  existence  is 
endangered  by  the  acts  of  a  few  w  ho  seek  temporary  profit  for  them- 
selves in  the  extermination  of  the  race. 

For  the  reasons  stated,  I  am  of  oitinion  that  these  fur  seals,  con- 
ceived, born,  and  reart'd  on  the  islamls  of  St.  Paul  and  St.  CJeorge.  be- 
longing to  the  Ihiited  States,  are,  when  found  in  the  high  seas  on  their 
way  back  to  tlicii'  land  home  and  breeding  grounds  on  those  islands, 
the  property  of  the  Tnited  States,  and  that  tliis  right  of  property  is 
qualified  only  in  the  sense  tliat  it  will  cease,  when,  but  not  before,  they 
cease  to  liave  the  habit  of  returning  tothePribiU)f  Islands  after  their  ens 
loiuary  migration  into  the  open  waters  of  Deriiig  Sea  and  Ike  North 
Pacific  Ocean. 


If  tlie  claim  of  the  T'''nited  States  to  own  these  fur  seals  rests,  in  law, 
upon  a  sound  foundation,  the  next  inquiry  is  whether  it  may  ])rotect  its 
property  .'  There  can  be  but  one  answer  to  this  question.  Manifestly  it 
would  lia\  ('  the  same  authority  to  protect  its  property  that  an  individual 
has  for  the  protection  of  his  property.  The  United  Svates  may,  to  that 
end,  eiii[)loy  any  means  which  the  law,  under  the  like  circumstances, 
l)ermits  to  an  imli\  idnal  tor  the  protection  of  his  property.  No  one 
(juestions  its  right  to  afford  protection,  to  thatextent,  whilethe  seals 
arc  on  its  islands,  and  while  they  are  within  territorial  waters.  That 
right — if  the  Ignited  States  oinis  the  seals — is  not  lo.'-.t  while  they 
arc  temporarilly  absent  in  the  high  seas,  beyond  territorial  waters; 
for.  they  are  righf  fully  in  the  high  seas,  and  the  United  States  is  right 
full\  present  wherever  its  ships  may  be  in  the  high  seas.  Jt  is 
scarcely  necessary  to  cit(>  authorities  in  support  of  this  position. 
Tiie  Altorneydeitcral  of  (ireat  Ibitain  concedes  that  "if  the  fur  seal 
is  to  be  treated  as  an  article  of  property,  there  is  the  right  to  defend 
ii  (Ml  the  high  seas  if  attacked'" — "the  (udinary  right  of  defenstiof  pos 
session  wbicli  behmgs  to  an  individual  owner  of  pi-operty." 


ul  nil  qnes- 

fjllt    ICilSOll, 

)ii  bo  ;,nveii 
ions,  lioids 
cc  IVoiii  ox- 
s  bestow  I'd 
)in  a  Judy- 
the  law  of 
sxistcnco  is 
b  for  iheiii- 

seals,  coii- 
icort'c.  be- 
as  on  their 
so  islands, 
»roperty  is 
tcf'ore,  tliey 
r  their  cus- 
llie  North 


!ts,  in  law, 

l)r()te»'t  its 

nilestly  it 

ndividiuil 

ly,  to  that 

instances, 

Xo  one 

the  seals 

rs.    That 

liih^  they 

I    waters; 

s  is  right- 

s.      Jt  is 

position. 

V  i'nv  seal 

o  dciend 

si;ol'l)os 


187 

But  does  the  ri.trht  of  the  TTnited  States  to  i>rotect  this  race  of  luiinials 
iVoin  extei'ininatioii  by  peiafi'ic  hniiters  dcitcnd  npoii  its  nw  ii<  rsiiip  of 
tlic  herd,  wliile  the  seals  are  beyond  jniisdictiiiiial  limits  in  the  lii.uli 
seas?  Does  that  country  have  such  specitd  pecuniary  iiitcrtst  in  the 
])reservation  of  the  race  that  it  may,  consistently  witli  the  law  ol' 
nations  and  indeitendently  of  any  rij^ht  of  property  in  the  herd  itself, 
interimse,  if  need  be  by  force,  to  i)revent  their  wanton  destruction  while 
absent  from  the  Pribilof  Islands?  1  say  wanton  destruction,  because 
no  one  can  for  a  moment  doubt  that  ]ielagic  sealing-,  if  it  contiiuu's  to 
the  extent  practiced  within  the  past  live  years,  will  si.ou  exterminate 
Ihis  race. 

The  princii)al  facts  upon  which  the  United  States  rests  the  contention 
that,  iinlei  endently  of  property  in  this  herd  of  seals,  it  may  use  such 
means  as  are  necessary  to  prevent  the  destruction  of  the  race  by  pelagic; 
sealers,  are  summarized  in  the  following  extracts  from  th.e  printed  argu- 
ment of  the  counsel  of  the  United  States: 

''Here  is  a  herd  of  ami)hibi()us  aninu>ls,  half  human  in  their  intelli- 
gence, valuable  to  mankind,  almost  the  last  of  their  species,  which  from 
time  immemorial  have  established  their  home  with  a  constant  animus 
rcnrfrndi  on  islands  once  so  remote  from  the  footsteps  of  man  that 
these,  tlieir  only  deni/ens,  might  reasonably  have  been  expected  to  be 
]»ermitted  to  exist  and  to  continue  the  usel'ulness  for  which  the  beneli- 
cence  of  the  Creator  designeil  them,  Ui)on  tliese  islands  their  young 
are  begotteii,  brought  forth,  nurtured  during  the  early  months  of  their 
lives,  the  land  being  absolutely  necessary  to  the.se  processes  and  no 
other  land  having  ever  been  sought  by  them,  if  any  other  is,  in  fact, 
available,  which  is  gravely  to  be  doubted, 

"The  b'ussian  and  I'niteil  States  (ioveinments,  suecessively  proprie- 
tors (1  the  islands,  have  l)y  wise  and  careful  supervision  <'heiislied  and 
])rotected  this  luM'd,  and  have  built  up  from  its  jiroduct  a  permanent 
business  and  industry  valuable  to  themselves  and  to  the  world,  and  a 
large  source  of  ])ublic  revenue,  and  which  at  tiie  same  tinu>  preserves 
the  animals  trom  extinction  or  from  any  interference  inronsistent  with 
the  dictates  of  humanity. 

"It  is  now  i»roi)osed  by  individual  <'iti/,ens  of  another  country  to  lie 
in  wail  lor  tliese  animals  on  the  adjacent  sea  during  the  season  of  repnt- 
dncticm,  and  to  destroy  the  pregnant  females  on  their  way  to  the  islands, 
the  nursing  niotiiers  alter  delivery  while  temporarily  otf  the  islands  in 
pursuit  of  food,  and   thereby  the  yt'ung  left  there  to  starve  after  the 


'1    ,i| 


f  i 


188 


inotliors  liavc  1)00tj  slanjilitorod;  tlic  tniavoidiiljl*'  vosiilt  bciiijif  llio 
exlcrniiiiation  ol'  Ilio  wlioli'  lacc  ami  llic  (Ii'stiuction  of  tlio  valuable 
iiilercsls  tlii'it'iH  of  tlie  I'liilod  Slalos  (iovcniiiu'iit  and  of  iiiaiikind ; 
and  the,  only  objc'ct  IxMiij;  the  .small,  uiiccitain,  and  ItMiipoiary  i)i<)lits 


)n  lasbs,  by  the  individuals 


to  bo.  deriviul  while  the  proeess  of  Ue.si 
concerned. 

'■And  it  is  this  conduct,  inhuman  and  barbarous  beyond  the  power 
of  desi!rii>tion,  criminal  by  tlie  laws  of  tlie  United  Suites  and  of  every 
civili/ed  country  so  far  as  its  municipal  juri.sdiction  extends,  in  respect 
to  any  wild  animal  uselul  to  man  or  even  ministcrinj--  to  his  harmle.ss 
pleasure,  that  is  insisted  upon  as  a  part  of  the  sacred  ri.ijhts  of  the 
treedoin  of  the  .sea,  which  no  nation  can  reiuess  or  defend  a;^ainst, 
whatever  its  necessity.  Can  anything;'  be  added  to  the  statement  of 
this  ])r()po.sition  that  is  necessary  to  its  refutation? 

''What  precedent  for  it,  ever  tolerated  by  any  nation  of  tlic earth,  is 
l>roduced?  From  what  writer,  jud,nc,  Jurist,  or  tn^aty  is  authority  lo 
be  deiivcd  for  the  assertion  that  the  hiiili  .'Jea  is  or  ever  has  been  free 
for  .such  conduct  as  this,  or  that  auy  such  construilidii  was  evcrbetbre 
given  to  the  terms  'frec(b»m  of  tlic  sea'  as  to  throw  it  open  to  the 
destruction,  for  the  protit  of  indix  iduals,  of  \aluable  national  interests 
of  any  (lescrii)lion  whatever?" 

The  general  proposition  deduced  from  these  statements  is,  that  no 
individual  can  be  said  to  have  a  rit/ht.  under  internatioiud  law,  to  iwlcr- 
minute  a  rare  of  valuable  animals,  tor  the  sake  simply  of  the  temporary 
protit  realized  from  such  practices  while  the  process  of  destnmt  ion  goes 
on;  consequently, it  is  argued, the  Fiiited  States  may,  ui>on  the  principles 
of  self-protection  or  self-preservati«»ii.  employ,  e\en  upon  the  high  seas, 
such  force  as  is  necessary  to  prevent  that  destruction  ami  thereby  ])ro- 
tect  the  industry  which  is  maintained  oii  its  islands  for  purposes  of  rev- 
enue and  conunerce  as  well  as  for  the  comtbrt  and  maintenance  of  the 
native  inhabitants  of  those  isiaiu'.s — ^Ite  extNtencv  of  ichirh  iuduntry  de- 
pends absolufely  upim  the  existence  of  this  r<icc  af  aniinals. 

This  proi)osition  is  disputed  by  Her  llritanuu-  Majesty,  who  insists, 
by  counsel,  that  her  subjects,  unless  forbidden  by  the  laws  of  (ireat 
Britain,  or  by  some  treaty  or  convention  to  which  that  e<tnntiy 
is  a  [)arty,  are  entitled  under  tlie  law  of  n  itious  t)  eai»ture  and  kill 
for  use  or  protit.  any  animals,  however  valuable,  found  in  the  iiigh 
seas;  that  this  rig.it  does  not  dc[»end  in  the  .slightest  degree  ui)on 
the  impiiry  whether  tlie  ji.irtii'ular  metiiods  employed  in  cajUuring  and 


1 


'.  valuiiblc 
iDaiiUind; 
ry  jirolits 
idivi(lii:ils 

lie  power 
I  of  (ivory 
ill  rcsitect 
liiiriiiUsss 
lits  of  the 
I  iiyainst, 

itOUUMlt  of 

\c  earth, is 
ithority  lo 
been  free 
>ver  before 
)en  tt»  tlie 
1  interests 

is,  that  no 
to  exlcr- 
Icniitorary 
jclion  goes 
»riuciples 
|ii;j:h  seas, 
[rcby  ju'o- 
fcs  of  rev- 
ice  of  the 
\iutitry  dti- 

()  insists, 

l>f  (ireat 

conntry 

I  kill 


an 


189 

killing  the  aninnils  arc  of  are  not  barbarons,  or  wliether  the  [)roseen- 
tion  of  the  business  will  or  will  not  result  in  the  speedy  extermina- 
tion of  the  race,  or  in  tiie  destruetion  of  tiie  fur  seal  industry  nniiiitained 
by,  or  under  the  authority  of,  the  United  States  on  its  islands;  and 
that  any  intorfcvcnce  whatever  l)y  otlier  nations  with  the  exereise  of  this 
ri<^ht  by  Ibitisli  subjects  is  forbidden  l)y  the  doctrine  of  the  freedom 
of  the  seas  as  recognized  by  international  law. 

In  respeet  to  that  brain-h  of  the  general  proposition  advanced  by  the 
United  States  which  assumes  that  i)elagic  sealing,  conducted  accoi'ding 
to  the  destructive  methods  and  to  the  extent  now  practiced,  involves  the 
speedy  extermination  of  the  race,  and,  eonsetiuently,  the  destiuction 
of  the  fur  seal  industry  establislied  on  the  I'ribilof  Islands,  I  do  not 
care  to  add  anything  to  what  has  already  been  said  by  me;  Ibr  it  can 
not  be  disputed,  under  the  evidence,  that  such  results  will  speeddy 
follow  iron)  unrestrained  pelagic  sealing.  Uut  is  it  not  e(pially  clear 
that  the  subjects  of  Her  Ib'itannic  Majesty  are  not  entitled,  of  rUthf^ 
under  the  l;,w  of  nations,  thus  to  cvlcyminato  a  r(i<e  of  useful  aninnds? 
Oertainly  no  sueli  right  is  recognized  in  the  '.-.unicipal  law  of  any  civ- 
ilized country,  much  less  in  the  law  of  nations  which,  all  writers  agree, 
rests  primarily  upon  those  principles  of  natiiraljusticeand  morality, and 
those  distinctions  between  right  and  wrong  which,  in  tlie  words  of 
Cicero,  are  "congenial  to  tlie  feelings  of  nature,  diffused  among  all 
nu>n,  nuilbrni,  eteriiaj,  commanding  ns  to  our  duty,  prohibiting  eveiy 
violation  of  it — one  eternal  and  immortal  law.  which  can  neither  lie 
repealed  nor  derogatecl  from,  addre-^sing  itself  to  all  nations  and  all 
ages,  deriving  its  authority  from  the  common  Sovereign  of  the  universe, 
seeking  no  other  lawgiver  and  interi)reter, carrying  home  its  sanctions 
to  every  breast,  l)y  the  inevitable  punishment  He  inflicts  ou  its  trans- 
gressors."' 

There  is  fair  room  for  discussion  as  to  whether  the  annihilation  of  this 
race  of  useful  animals  by  individuals  or  associations  of  individinils, 


iiile  such  aninnils  are  in  the  hii 


■;eas,  can  be  legally  ]>ievented  in 


liigh 


111 


)on 


any  other  mode  than  by  a  treaty  or  convention  that  will  control  ei|iiaHy 
the  citizens  or  subjects  of  a// nations.  Ibit  the  mind  instantly  recoils 
from  the  suggestion  that  such  jnactices  are  in  the  exercise  of  a  yif/lif 
])rotected  by  the  law  of  nations,  and  mu  ;t  be  submitted  to  by  the  United 
Staff's,  howexer  injurious  fliey  nniy  be  *o  its  iiaterial  intei'csts.  A 
de(daration  by  this  Tribunal,  in  express  woi  Is,  or  b\  the  necessary  effect 
of  its  award,  that  the  destrueti(Ui,  from  >/((>•    tcantonnesn,  of  useful  ani 


iiig  aud 


190 


m 


ii'ii 


mills,  is  ill  the  oxi'rcJso  of  aright  scciiicd  or  proti'cted,  by  tlie  law  of 
iiiitions,  would  shock  the  iiiuriil  sense,  of  niaukiiKl.  r>nt,  in  priiieii>le, 
there  can  be  no  (lincreiice  between  tiiede.stiuetion  from  mere  wantoiiness 
of  tliese  useful  aiiiuiiils,  and  their  destruclion,  for  temporary  };ain,  by 
methods  that  are  iiiliuman  and  barbarous,  and  which  will  surely  result 
in  the  speedy  extermination  of  the  entire  race,  tiiereby  defeatinj;  the 
benefi(!eiit  puri)oses  for  which  they  iiave  been  bestowed  by  the  Creator 
ui)on  man. 

If  it  be  said  that  these  animals  are  given  to  riankind  for  tlieir  use,  and 
that  the  takiu<4'  of  them  in  the  hiyli  seas  is  only  one  mode  of  utili/iii<^ 
tln'm,the  answer  is,  that  tiie  obligations  arising  Irom  the  relations  whicli 
men  and  states  nuist  sustain  to  each  other  forbid  any  mode  of  taking 
them  that  is  plainly  inconi[)atible  with  the  existence  of  the  race,  and, 
therefcne,  destructive  of  such  use.  Paley  says  that  from  reason  or  reve- 
lation, or  from  both  together,  "  it  apiiears  to  be  ( Jod  Almighty's  intention 
that  the  productions  of  the  earth  should  be  applied  to  the  sustentat  ion  ol 
human  life;"  and,  "consequently,  all  waste  and  misapi)lication  of  these 
productions  is  contrary  to  the  divine  intention  and  will,  and  therefore 
wrong,  for  the  same  reasons  that  any  other  crime  is  so."  Among  the 
illustrations  given  by  thoauthor  of  such  wrongs  or  (irimes  is  the  "dimin- 
ishing the  breed  of  animals  by  wanton  or  imiuovideut  consumption  of 
the  young,  as  of  the  spawn  of  shelllish  or  the  fry  of  salmon,  by  the  use 
of  unlawful  nets  or  at  improper  seasons."  Falcifs  Moral  FhUosophu, 
(',.  XI.  Alirens,  in  his  Course  of  Natural  Law,  states,  as  the  result  of 
rational  principles  to  which  the  right  of  i)roperty  and  its  exercise  are 
subjected,  "  that  property  exists  for  a  rational  purpose  and  for  a  rational 
use;  it  is  destined  to  satisfy  the  various  needs  of  human  life;  conse- 
(pieiitly  all  arbitrary  abuse,  all  arbitrary  destruction,  are  contrary  to 
right."  Vol.  2,  e<L  l>'<7i!,  Bl\  I,  <liv.  /,  67;  ed  ISCO,  p.  3r>(J.  Schoiiler,  in  his 
Treatise  on  the  Law  of  Personal  Properly,  says:  "Nature  teaches  the 
lesson,  doubly  enforced  by  revelation,  tliat  the  right  of  the  human  race 
to  own  and  exercise  dominion  over  the  things  of  this  earth  in  successive 
generations  carries  with  it  a  corresponding  moral  obligation  to  use, 
enjoy,  and  transmit  in  due  course  for  the  benefit  of  the  whole  human 
race,  not  for  ourselves  only,  or  for  tliose  who  preceded  us,  but  for  all 
who  are  yet  to  come  besides,  that  the  grand  purpose  of  the  Creator 
and  (ii\ cr  may  be  accomplished." 

Thiers,  in  his  Treatise,  on  Property,  says  tliat  experience  denjonstrates 
the  absolute  necessity  of  the  institution  of  property,  its  appropriateness, 


the  law  of 

II  uriiuMph', 
kviintoiiiics.s 
ly  oain,  by 
iiroly  result 
'tc'iitiii};'  tho 
the  Creator 

eiruse,  aiul 
ofutili/iiitc 
itions  which 
le  of  taking 
0  race,  and, 
8on  or  reve- 
y\s  intention 
itentalion  ot 
tioii  of  these 

III  tliereforo 
Anionj;'  tho 
the  "(liniin- 
suniption  of 
,  by  the  use 

V(  ilosophtf, 

e  result  of 

xercisc  are 

bra.  rational 

ife;  conse- 

contrary  to 

)uler,  inhis 

caches  the 

luinan  race 

successive 

on  to  use, 

ole  human 

but  for  all 

he  Creator 

M>i()nstrates 
ypriatenesa, 


191 

its  nsofiilness;  that  iiroiicrty  is  a  j;('iicral,  consfant,  universal  fact,  as 
indispensable  to  the  existence  of  man  as  liberty  is  to  his  welfare;  that, 
in  all  a{;es  and  in  all  countries,  man  has  instituted  property  as  the  noc- 
cessary  reward  of  labor,  and  that  property  has  become  a  law  of  his 
spet'ies.  7>/i-.  i/,  cliaptcrs  1,  2,  .7,  and  I.  r)Ut  no  writer  has  ever  main- 
tained the  monstrous  proposition  that  society  when  instituting;  prop- 
erty, re(!o<;nized  the  wanton,  reckless  extermination  of  a  race  of  useful 
aninnils  as  one  of  the  ru/lits  inherent  in  man,  or  as  tolerated  by  tho  prin- 
ciples of  Justice,  beninolcnce,  and  rij;ht  which  constitute  the  basis  of 
tho  law  of  nations.  All  will  concede  that  one  of  the  ^vant  objects,  if 
not  the  supreme  object,  which  society  expected  to  accoTni»lish  by  the 
institution  of  property,  was  to  preserve  and  initrease,  those  thin^js,  ani- 
mate and  iiianinnite,  that  are  bestowed  ujjon  man  for  his  use.  Man- 
kind is  entitled  to  participate  in  the  enjoynu'ut  of  the  tliin,!;s  thus  be- 
stowed upon  the  world,  ami  that  it  may  do  so,  society  reco,i;nizes  the 
right  of  every  one  to  appropriati^  to  his  own  usesucli  things  as  suseei>ti- 
ble  of  ownership,  have  not  been  ap[)ropriated  l)y  others,  lie  is  allowed, 
under  given  circumstances,  to  appro[)riate  to  himself,  exclusively,  val- 
uable animals  fercv  naturWjhut  he  nuiy  not,  of  right,  exterminate  the 
race  itself. 

If,  by  care,  imlustry,  and  self-denial,  he  can  bring  the  race  under 
snch  control  that  he,  and  he  alone,  is  able  to  deal  with  it  as  a  w/iolc, 
taking  the  increase  withi>ut  diminishing  the  stock,  tluMi  as  I  ha\e 
alread  endeavored  to  show,  a  recognition  of  a  right  of  property  in 
him  is  not  only  a  fair  and  just  return  for  the  care,  industry,  and  self- 
denial  bestowed  by  him,  but  is  consistent  with  the  objects  lor  which 
property  has  been  instituted.  But  he  cannot,  without  committing  a 
wrong  against  soviety,  exterminate  the  race  itself,  either  from  mere 
wantonness  or  by  the  employment  of  methods  that  inevitably  lead  to 
that  result. 

With  entire  truth,  therci'ore,  it  may  be  said  that  the  extermination 
of  this  race  of  animals  by  the  destructive -methods  of  pelagic  sealing, 
involving  necessarily  the  killing  in  vastnuml)crs  of  female  seals  heavy 
with  young  or  nursing  their  pups,  or  impregnated,  is  a  crim«'  against  tho 
hvwof  nature,  and  consequently  without  any  sanction  whatever  in  thelaw 
of  nations.  That  law.  indeed,  recognizes  the  freedom  of  the  seas  for  tho 
peo])les  of  all  nations,  and  no  nations  ha\i'  stood  more  lirmly  by  that 
doctrine  or  are  more  interestcvl  in  its  enforcement  than  (ircat  ihitain 
and  the  United  States.    Uut  I  have  not  found  in  any  treatise  upon  iu- 


I 


I 


102 


tcnintinniil  law,  or  in  thojiuljiineiit  of  iiuy  coiut,  ;i  hint  even  tliitt  this 
(l(K;triiie  conlei's  upon  iiidividiiJil.s  or  associatioiis  a  rifflit  to  ('tiii)hiy 
ni('th(«lsfor  the  tiikiii^iofuscriil  aiiiiiiiilsroimd  in  tiiohij;!!  .scaswhicii  will 
oxtorniiiiato  the  iiici',  when  nil  know,  or  may  easily  know,  that  such 
animals  maybe  rea<lily  taken  at  their  broedin^j;- j^ronnds,  and  not  else- 
where, by  methods  that  rej^iiliirly  jiive  their  inerease  for  man's  nse 
without  at  all  impiuriny  or  dinunishiny  the  stock.  One  method  results 
in  the  externunatio'i  of  the  race,  whereby  the  obJe<'t  of  its  creation  is 
(Mitirely  defeated;  the  other  results  in  its  preservation,  whereby  that 
object  is  siM'iired.  It  is  ineonceiv;ible  thnt  the  law  of  nntions  yives  or 
reco<>ni/es  the  riyht  to  employ  the  former. 

No  (uvilized  nation  does  or  would  permit,  within  its  own  territoiy,  tlu* 
destrui^tion  or  externunation  of  a  race  of  usefid  aninnds  by  methods  at 
once  cruel  and  revoltinjj.  And  yet  it  is  said  tiiat  such  conduct,  if 
practiced  on  the  liii^h  seas,  the  common  highway  of  all  peoides,  is 
l)r()tected  by  international  law  which  rests,  as  Jurists  and  courts  agree, 
primarily  upon  those  principles  of  moriility.  Just  ice,  right,  and  humanity, 
by  whi('li  the  coiuluct  of  individuals  mid  states  are,  and  dugiit  to  be, 
guided.  Thus  the  law  to  which  all  civilized  nations  have  iissented 
is  nuub^,  by  the  contention  in  question,  to  cover  and  protect  acts  which 
710  one  oj  those  naiions  irould,  for  an  inshmf,  tolerate  within  Hn  liviitn. 
It  is  beyond  all  comprehension  that  an  act  which  everj'^  civilized  man 
must  condemn  can  be  Justiticd  aiul  sustained  as  having  been  done  in 
the  exercise  of  a  right  given  or  secured  by  a  law  based  upon  the  assent 
of  nations. 

That  I  am  correct  in  saying  that  no  nation  would  permit,  wMtliiu  its 
territory,  any  methods  for  the  taking  of  useful  wild  animals  that  would 
result  in  the  speedy  extei  inination  of  the  race  is  shown  by  reference 
to  the  legislative  enactments  and  regidations  in  different  countries  for 
the  protection  of  valuable  aninnds,  the  basis  of  important  industries, 
against  the  reckless  conduct  of  those  who  consult  temptuary  gain  for 
tluMuselves  at  the  expense  of  the  rights  of  the  general  public. 

But  it  is  said:  "Grant  that  the  taking  of  these  animals  in  the  high 
seas,  by  methods  destru(;tive  of  the  race,  is  not  a  rijjht  uiuler  the  law 
of  nations;  grant  that  the  employment  of  such  methods  is  iiduunan  and 
injurious  to  the  best  interests  of  mankind;  grant  that  tlie  fiu'  seal 
industry  maintained  at  the  I'ribilof  Islaiids  depends  absolutely  ui)ou 
these  auinnils  not  IxMug  killed  while  they  are  temporarily  in  the  high 
seas  in  search  of  food,  or  while  they  are  on  their  way  back  to  their 


11)3 


that  tliia 
I)  ('iiii)l<ty 
vliich  will 
liiit  sncli 
I  not  clsc- 
iiaii's  use 
oil  results 
•I'Oiitioii  is 
'I'oby  tliat 


s  j;ivc'S  or 


ritory,  tlio 
lotliods  itt 
•oiuluct,  if 
)C()\)l('s,  is 
xrts  agroo, 
liniiuuiity, 
ijilit  to  bo, 
e  asseiiti'd 
acts  \vlii<'li 
v7.s'  limitfi. 
ili/cd  man 
\n  (lone  in 
the  assent 

within   its 

Ihat  would 

rei'eieueo 

iitries  for 

Industries, 


gam  lor 


the  hi.i-h 
the  law 

linian  and 
I'ur  seal 

Itely  ui)ou 


the 


111, mi 


to  their 


bioediiif,' {^rounds;  by  what  authunty  does  the  Tnited  States  interfere 
with  the  iiiovciiieiits  of  the  siiliiecfs  of  (tther  couiitiies  on  the  lii,nh 
seas,  iuid  by  the  use  of  force  i»reveiit  them  IVom  takiii;;'  tlicse  animals 
while  they  are  bevoiid  the  Jiirisdi(!tional  limits  of  that  country '" 

Thisiiuestion  pnxM'i'ils  iii)  mi  the  y'round — inopoiindeil,  not,  iiidecil,  in 
words,  but,  iiiell'ect,  by  the  arijument  of  counsel — that,  without  support 
from  treaties  or  conventions  Ix'tween  the  maritime  nations  of  the  world, 
the  United  Slat(vsis  jiowerless,  uiuhir  the  law  of  nations,  to  preserve  the 
industry  established  and  maintained  by  itat  the  I'ribiloC  Islands  aj;ainst 
the  lawless  nets  of  individuals  upon  the  liijiii  seas.  Tlies(>  acts  are  so 
characterized,  because  the  killing-  of  these  fur  seals  in  the  high  seas, 
as  now  i)ra(!ti(M'd,  whtn-o  ii!)  discrimination  as  to  sox  is  possil)le,  and 
when  the  extermiiiation  of  the  race  will  be  the  inevitable  result  of  such 
killing,  is  forbidden  l»y  every  consideration  of  huinaiiitj',  reason,  ami 
justice.  And,  in  view  of  tlui  facts  disclosed  by  the  record,  it  is  clear 
that  the  killing  of  these  iiniiiials  by  pelagic  sealers,  while  they  are  in 
the  high  seas,  on  their  migration-route,  is  as  certainly  destructive  of 
the  industry  inaintainod  by  the  United  States  at  the  I'ribilof  Islands 
as  if  the  pel (1(1  ic  ItniitcrN  came  person aUy  to  the  Islands,  durimf  the  breed- 
infi  season,  ami  enf/aned  therein  the  iutlisrrintinate  slaiuihtcr  of  the  ani- 
mals, without  rrijard  to  their  se,r  or  atje. 

That  the  United  States  can  rightfully  contnd  the  killing  of  these 
animals  both  on  the  L*ribilof  Islands  and  within  its  territorial  waters  will 
not  be  disputed.  This  much,  all  admit,  may  be  done  in  virtue  of  its 
sovereignty  over  such  country  and  water.s.  l>ut  as  the  important 
industry  maintained  on  the  islands  can  be  preserved  only  by  preventing 
the  destructicm  of  these  animals  after  they  hare  passed  beyond  terri- 
torial waters  into  the  high  seas,  with  the  intention  of  retnrninff  to 
their  breedimj  (/rounds  the  suceeediny  spring  and  summer,  does  not 
the  right  of  self  protection  or  self  preservation,  which  belongs  to  every 
independent  nation,  entitle  it  to  protect  these  animals  while  tem[)orarily 
absent  fromtheirlaiidhonu^J  Vat  tel  says:  "  In  vain  does  nature  presi-ribo 
to  nations,  as  well  as  to  individuals,  the  care  of  self  preservation,  and 
of  advancing  their  own  perfection  and  happiness,  if  she  does  not  give 
them  aright  to  preserve  themselves  from  everything  that  might  render 
this  care  ineflectual.  #  *  *  lOvery  nation,  as  well  as  every  man,  has, 
therefore,  a  right  to  prevent  other  nations  from  obstructing  her  i)reser- 
vation,  her  perfection,  and  happiness — that  is,  to  preserve  herself  from 
all  injuries;  and  this  right  is  a  perfect  one,  since  it  is  given  to  satisfy 


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23  WEST  MAIN  SftiilET 

WEBSTER,  N.Y.  14580 

(716)  872-4503 


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194 


I 


if 


■■' '    i 


a  natural  iiulispciisablc  ubli^atiun;  tor  when  wo  can  not  use  coiiKtrnint 
in  order  to  cause  our  ri^fhts  to  bo  respected  tbeir  etiects  are  very  un- 
certain. It  is  this  ri^iit  to  preserve  itself  I'roiu  all  injury  that  is  called 
thGriijIit  of  security. ^^  lik.2,o,  I.  Dr.  Philliujore,  in  hisConinientarieson 
International  Law,  says:  "The  right  of  self-preservation  is  the  first 
law  of  nations,  as  it  is  of  individuals.  A  society  whicii  is  not  in  a  con- 
dition to  repel  aggression  from  with<M(t  is  wanting  in  its  principal  duty 
to  tlie  members  of  wliich  it  is  (;ompi)sed  and  to  the  chief  end  of  its  in- 
stitution. All  means  which  do  not  affect  the  indepen<lence  of  otl  r 
nations  are  lawful  for  this  end.  No  nation  has  a  right  to  prescribe  to 
another  what  these  nutans  shall  be,  or  to  reijuire  any  account  of  her 
conduct  in  this  respect."  Again,  the  same  author:  "We  have  hitherto 
considered  what  measures  a  nation  is  entitled  to  take  for  the  i)re8erva- 
tioM  of  her  safety  witliin  her  dominions.  It  may  happen  that  the  same 
right  may  warrant  her  in  extending  precautionary  measures  without 
these  limits,  and  even  in  transgressing  tiie  borders  of  her  neighbor's 
territory.  For  intermitional  law  considers  the  right  of  self-preserva- 
tion as  prior  and  paramount  tx)  that  of  territorial  inviolability,  and, 
wiiere  they  conllict,  justifies  the  maintenance  of  the  former  at  the 
expense  of  the  latter  right."  1  Fhillimorr,  3r,2-;j53,  c.  10,  §§  211,  311, 
2(1  ed.  Hall  says:  "In  the  last  resort  almost  the  whole  of  the  duties 
of  states  are  subordinated  to  tl»e  right  of  self  protection.  •  •  • 
Tliere  are,  however,  circumstances  falling  short  of  occasions  upon 
which  existence  is  immediately  in  question,  in  which  through  a  sort  of 
extension  of  the  idea  of  self  preservation  to  include  self-protection 
against  serious  hurt,  states  are  allowed  to  disregard  certain  of  the 
ordinary  rules  of  law,  in  the  same  manner  as  if  their  existence  were 
involved."    Hall  Tut.  Law,  PI.  IT,  V.  7,  2  ed.,  p.  244. 

It  has  been  suggested  that  the  doctrine  of  self-proteetion,  referred 
to  by  writers  upon  international  law,  has  application  only  where  the 
acts  against  which  the  state  defends  itself  involve  its  existence,  inde- 
l)endence,  or  safety,  or  the  inviolability  of  its  territory,  aiul  do  not  justify 
in  time  of  i)eace,  any  exercise  of  authority  or  power  by  a  state,  beyond 
its  jurisdictional  limits,  in  order  merely  to  i)revent  the  doing  of  that 
which,  in  its  dire('tefi'ects,  will  work  injury  to  its  material  interests. 

A  famdiar  illustration  of  the  extent  to  which  a  State  may  go  in 
defending  its  existence  or  providing  for  its  safety,  is  that  of  a  blockade 
which  interferes  with  the  commerce  of  neutral  nations.  "Tin'  greatest 
liberty,"  Manning  says,  "wliich  law  should  allow  in  civil  government 
:.s  tUii^  power  of  doing  everything  that  does  !iot  injure  any  other  person, 


195 


constraint 
e  very  un- 
it is  called 
entariesou 
s  tlic  first 
)t  in  a  con- 
icipal  duty 
d  of  its  in- 
je  of  otl  T 
rescribo  to 
Dunt  of  her 
ve  hitherto 
10  i)re8erva- 
at  the  satue 
lies  without 
V  neighbor's 
jlf-preserva- 
fibility,  and, 
[iner  at  the 
I,  §§  211,  311, 
the  duties 
•      •      • 

isions  upon 

gh  a  sort  of 

'jnotection 

tain  of  the 

stenee  were 

on,  referred 
y  where  the 
;ten('e,  inde- 
0  not  justify 
ate,  beyond 
ing  of  that 
erests. 
nisiy  go  in 
a  blockade 
he  greatest 
j;overnincnt 
ither  person, 


and  the  greatest  liberty  wliiuh  justice  among  nations  demands  is  that 
every  state  may  do  anything  that  does  not  injure  any  other  state  with 
which  it  is  at  amity.  The  freedom  of  commerce  and  the  rights  of  war, 
both  undoubted  ««  long  as  no  injuntice  results  from  tlum,  hccome  ques- 
tionable as  soon  as  their  exercise  is  grievously  iijurious  to  any  independ- 
ent state,  but  the  great  ditferonco  of  the  interest  concerned  makes 
the  trivial  nature  of  the  restriction  that  can  justly  be  placed  upon 
neutrals  appear  inconsiderable  when  balanc(;d  against  the  magnitude 
of  the  national  enterprises  which  unrestricted  neutral  trade  might  com- 
promise. That  some  interference  is  justifiable  will  be  obvious  on  the 
consi  leration  that  if  a  ueutral  had  the  power  of  unrestricted  commerce 
he  might  carry  to  a  port  blockaded  and  on  tlio  point  of  surrendering, 
provisions  which  would  enable  it  to  hold  out  and  so  change  the  whole 
issue  of  a  war;  and  thus  the  vital  interests  of  a  nation  might  be  sacri- 
ficed to  augment  the  riches  of  a  single  individual."    Manning^s  Law 

of  Nations,  13k.  3,  c.  3. 

The  force  of  this  principle  is  not  lessened  by  the  suggestion  that  it 
relates  to  a  time  of  war,  to  the  rights  of  belligerents.  The  right  of  self- 
protection  or  self  preservation  is  as  complete  and  perfect  in  time  of 
peace  as  in  time  of  war.  The  means  employed  when  svar  prevails  may 
not  always  be  used  in  a  time  of  peace.  The  test,  both  in  war  or  in 
peace,  is  whether  the  i>articular  means  used  are  necessary  to  be  employed 
for  purposes  of  selfprotection  against  wrong  and  injury. 

Undoubtedly,  the  general  rule  that  a  state  may  emi»Ioy  such  means  for 
its  self-preservation  as  are  necessary  to  that  end,  is  subject  to  tlie  (piali- 
fication  stated  by  Mr.  Ohitty  in  his  notes  to  the  7th  American  edition 
(1849)  of  Vattel,  namely,  that  a  nation  has  the  rigiit,  in  time  of  peace  or  of 
war,  to  diminish  the  commerce  or  resources  of  another  by  fair  rivalry  and 
other  means  not  in  themselves  unjust,  precisely  as  one  tradesman  may  by 
fair  competition  undersell  his  neighbor  and  thereby  alienate  his  cus- 
tomers. P.  142.  But  this  qualification  is  wholly  inapplicable  to  the 
present  case,  for  the  reason  that  the  killing  of  these  animals  in  tlio 
high  seas,  by  seal  hunters,  is  in  itself  unjust,  and  as  I  have  attempted 
to  show,  does  not  rest  upon  any  right  secured  by  the  law  of  nations  to 
those  who  are  engaged  in  that  mode  of  taking  them.  It  is  equally  true 
that  the  commonest  and  simplest  form  in  which  the  doctrine  of  self- 
preservation  is  illustrated  is  in  cases  where  a  nation  employs  tbrce 
beyond  its  own  limits,  either  on  the  high  seas  or  within  the  limits  of 
another  state,  in  order  to  meet  a  threatened  attack  upon  its  existence 
or  a  threatened  invusiou  of  its  territory.    But  1  am  aware  of  noautlfor- 


196 


11 


i  • 
1^' 


1,1 


m 


ti'f  : 


Ml  " 

11  <: 


ity  for  tliv  liioad  stiitcnicnt  Miat  a  nation  may  not  use,  upon  tlic  1ii{;l) 
seas,  ill  time  of  pcacit,  siu'li  Ioitc  as  is  necci^sary  to  piuvuiit  tlio  cfun- 
mission  of  sicts  which  iiave  no  sanction  in  thu  laws  of  natioiiM,  aru  in 
incinsulvus  wrong,  and,  if  committed,  will  inevitably  destroy  important 
industries  established  and  maintained  by  tliat  nation  within  its  territory 
ior  purposes  of  revenue  and  commerce,  The  nation  thus  employing 
f«>rce  for  the  protection  of  its  lawful  industries  does  not  thereby  appropri- 
ate to  itself  any  part  of  the  ocean,  or  extends  its  dominion,  or  inter- 
fere with  an  innocent  use  of  tiie  sea  for  purposes  ot  navigation  or 
iishing.  It  only  prevents  the  doing  of  what  can  not  be  rigiitfully 
done,  and  thereby  preserves  what  no  one  has  a  right  to  de.stroy.  The 
(loctrine  of  the  freedom  of  the  seas  does  not  authori/o  or  sanction  the 
destruction  of  the  material  interests  of  a  nation  by  means  of  acts  done 
on  the  high  seas  which  are  in  themselves  unjust  and  wrong,  Ix-canse 
hostile  to  the  interests  of  mankind,  and  contrary  to  those  rules  of  mor- 
ality, justice,  and  right  reason  which  govern  the  conduct  of  individuals 
and  nations  with  each  other.  Mr.  Blaine  well  said:  "The  law  of  the 
sea  is  not  lawles^iiiess.  Nor  can  the  law  of  the  sea  and  the  liberty 
which  it  confers  and  which  it  protects  be  perverted  to  justify  acts 
which  are  iaiinoral  in  themselves,  which  inevitably  tend  to  results 
against  the  interests  and  against  the  welfare  of  mankind." 

As  declared  by  Mr.  Justice  Story,  speaking  for  tiie  Supreme  Court  oi 
the  United  States,  in  the  case  of  the  Marianna  Flora  {11  Whcaton,  1,  12) : 
"Upon  the  ocean,  then,  in  time  of  peai^e,  all  jiossess  an  entire  erpiality. 
It  is  the  coininon  highway  of  all,  appropriated  to  the  use  of  all ;  and  no 
one  can  vindicate  to  himself  a  suiterior  or  exclusive  prerogative  there, 
livery  ship  sails  tliere  with  the  uiKpicstionable  right  of  pursuing  her 
own  lawful  business  without  interruption;  but,  whatever  be  that  busi- 
ness, she  is  bound  to  pursue  it  in  such  a  manner  as  imt  to  violate  the 
rights  of  others.  The  general  maxim  in  such  cases  is  siv  utero  tiio,  ut 
non  alieiium  Iwdas,"  OI>serve,  that  the  business  upon  the  high  seas,  the 
uninterrupted  prosecution  of  wiiidi  is  protected  by  the  doctrine  that 
the  free  use  of  the  ocean  tor  navigation  and  llshing  is  common  to  all 
mankind,  is  that  which  is  "lawful."  This  <loctrino  can  not  bo  invoked 
to  support  the  use  of  the  high  seas  for  the  perpetration  of  wrongs  or 
injuries.  On  the  contrary,  the  principal  gnumd  on  which  that  doctrine 
rests  is  that  the  sea  is  so  vast  in  extent,  and  so  inexhaustible  in  its  pro- 
ducts, that  its  free  use  for  purposes  of  navigation  and  lishing  can  do  no 
harm  to  any  one. 

Twiss,  iu  his  work  upon  the  Law  of  Nations,  after  observing  that 


tlic  \\\\!,h 
tlio  coin- 
\H,  arc  in 
tnpovtaiit 
territory 
mployiiif; 
appn  ►pri- 
or inter- 
gat  ion  \)V 
riglitftilly 
roy.    Tlic 
iction  tlie 
acts  «lone 
5,  l»ccans« 
es  of  nior- 
ulividuals 
law  of  tlie 
ho  liberty 
istify  acts 
to  results 

0  Court  ol 
\ton,  1,  12) : 
e(iuality. 
|]i;  aiul  no 
ive  there, 
suing  her 
Ithat  busi- 
iolate  the 
|;»v>  tuo,  lit 
seas,  the 
rine  that 
Inon  to  all 
invoked 
rongs  or 
doctrine 
n  its  pro- 
lan do  no 


ring  that 


197 

the  opcti  sea  ia  by  nature  not  capable  of  bring  reduced  into  the  posses- 
sion, or  being  elfiT.tively  occupied,  or  brought  under  the  empire  of  one 
nation,  savs:  "  Hut  indc|)endently  of  these  insurmountable  diniculties, 
the  use  of  the  open  sea,  which  consists  in  navigation,  is  iitmnriit  and 
inexhaustible;  he  who  navigat«'s  upon  it  does  no  harm  to  any  one,  and 
the  sea  in  this  respect  is  sullicient  fiu'  all  mankind.  But  nature  does 
not  give  to  man  a  right  to  appropriate  to  himself  things  whi(;h  in.ay  bo 
innocentlji  mhciI  hi/  all,  and  ichich  are  incrhauiitihlc.  ami  xuffwicnt  for 
all.  For  since  those  things,  whilst  common  to  all,  are  sufticient  to 
supply  the  wants  of  each,  whoever  should  attempt  to  render  himself 
sole  proi)rietor  of  them  (to  the  exclusion  of  all  other  participants)  would 
unreasonably  wrest  the  bounteous  gilts  of  n;  ture  from  the  parties  ex- 
cluded. Further,  if  the  free  and  common  use  of  a  thing,  which  is  in- 
capable of  being  appropriated,  was  likely  to  be  prejudicial  or  dangerous 
to  a  inition,  the  care  of  its  own  safety  would  autiioriise  it  to  reduce  that 
thing  under  its  exclusive  empire,  if  possible,  in  order  to  restrict  the  use 
of  it  on  the  part  of  (►thers,  by  such  precautions  as  prudence  might  dic- 
tate. But  this  is  not  the  case  with  the  open  sea,  upon  whicth  all  per- 
sons may  navigate  without  the  least  prejudice  to  any  nation  whatever, 
and  without  exposing  any  inition  thereby  to  danger.  It  would  thus 
seem  that  there  is  no  natural  warrant  for  any  nation  to  seek  to  take 
possession  of  the  open  sea  or  oven  to  restrict  the  in.iocent  use  of  it  by 
other  nations,"  Again,  the  same  author:  "  The  right  of  fishing  in  the 
open  sea  or  main  ocean  is  common  to  all  nations,  on  the  same  principle 
wliich  sanctions  the  common  right  of  navigation,  namely,  that  he  who 
fishes  in  the  open  sea  doen  no  injury  to  any  one,  and  the  prodnctn  of 
the  8ca  are  in  this  respect  incvhatistible  and  sufficient  for  all."  Ttciss, 
Law  of  Nations,  Title,  liiyht  of  the  Sea  (J.  11,  §§  172,  185.  So  Gro- 
tins:  "It  is  certain  that  he  who  would  take  possession  of  the  sea  by 
occupation  could  not  prevent  a  peaceful  and  innocent  navigati(Ui;  such 
a  transit  can  not  beintcrdii^teil  oven  oil  land,  though  ordinarily  it  would 
be  less  necessary  and  more  dangerous."  lik.  2,  c.  3,  §  12,  paye 
115.  Vattel:  "It  is  manifest  that  the  use  of  the  open  sea  which 
consists  ill  navigation  and  fishing  is  innocent  and  inexhaustible : 
that  is  to  say,  he  who  navigates  or  fishes  is  sullicient  for  all  man- 
kind."  Chap.  33,  See.  201.  A/uni,  in  his  work  on  the  Maritime 
Law  of  Kurojui,  well  says  that  tlie  sea  is  intended  by  Providence 
to  be  common  to  the  dilferent  nations  of  the  w<u"ld,  "to  contribute 
t/O  the  wants,  the  commerce,  the  well-being  and  the  prosperity  of  ail  who 


T 


198 


i!:j  f 


havetlio  means  of  navifratinfj  its  su  face" — not  that  it  may  be  used  of 
right  to  the  injur}' of  mankiiid  in  order  tliat  a  f<;\v  may  reap  a  temporary 
\noi\t  from  tlie  destruction  of  that  which  has  been  bestowed  for  the 
benefit  of  all.  Ft.  1,  o.  l^hll.  In  view  of  tliese  authorities,  how  can  it  be 
Haid  that  tlie  doctrine  of  tlie  ficedfun  of  the  seas  justifies  and  ])rote(!tH 
the  use  of  the  seas  for  tlie  purjioseor  with  the  inevitable  eflect  of  destroy- 
ing a  race  of  valuable  animals,  limited  ill  numbers,  easily  exhaustible 
by  waste,  and  in  the  preservation  of  which  all  mankind  is  interested! 

If  the  United  States  does  not  own  this  henl  of  seals,  and  if,  in  order 
that  they  may  reap  temporary  profit,  British  subjects  may,  of  rlghty 
exterminate  it  when  found  in  the  high  seas,  and  temporarily  absent 
from  its  land  home,  and  thus  destroy  an  important  industry  maintained 
f  )r  more  than  a  century  within  the  present  territory  of  the  United  States, 
then,  I  admit,  that  any  interference  by  the  United  States  with  the  hunt- 
ing and  killing  of  these  animals  in  the  high  seas  by  British  subjects  would 
be  a  marine  trespass  of  which  their  country  could  rightfully  comidain. 
But  I  deny  that  any  use  of  the  seas  for  the  purpose,  or  with  the  cer- 
tainty, of  producing  that  result,  is  a  lawful  use  of  the  ocean,  or  that 
the  right  of  the  United  States  to  preserve  its  material  interests,  thus 
directly  attacked,  depends  upon  the  consent  of  other  countries  to  be 
manifested  by  treaty  or  legislation.  The  nation,  whose  interests  are 
thus  assailed  may  stand  upon  its  inalienable  right  of  self-protection, 
and  by  force,  if  need  be,  prevent  the  commission  of  such  acts,  even  if 
it  msiy  not  in  its  own  courts  inflict  personal  jjunishment  for  such  wrongs 
upon  the  subjects  of  other  countries  who  commit  them.  If  it  employs 
for  its  self-iirotection  more  force  than  is  reasonably  necessary  it  will  be 
responsible  therefor  to  the  country  upon  whose  subjects  such  force  is 
used.  But  its  inability  to  inflict  such  ]mnisliment,  in  its  own  courts, 
can  not  affect  its  right,  by  such  force  as  is  necessary,  to  preserve  its 
material  interests  by  repressing  the  acts  of  wrongdoers  directly  injurious 
to  those  interests.  When  the  books  speak  of  the  equal  rights  of  all  people 
to  use  the  ocean  for  purposes  of  navigation  they  mean  navigation  for 
purposes  that  are  innocent  and  hn\  ful,  and  not  for  purposes  which  are, 
in  themselves,  unjust  and  injurious  to  others. 

These  views  are  not  at  all  in  conflict  with  the  general  rule  that  a 
state  may  not  exercise  s(»vereigii  authority  or  jurisdiction  beyond  the 
line  of  territorial  waters,  wliethor  that  line  be  a  marine  league  from  its 
shores,  or  at  such  distance  as  may  be  measured  by  cannon  shot.  That 
rule  has  its  origin  in  the  necessity  which  every  state  is  under  to  i)rovide 
for  the  safety  of  its  own  people  and  interests.    But  the  right  of  self- 


199 


^  used  of 
inporary 
1  fortlic 
can  it  be 
])rotectH 
(destroy- 
lianstible 
tereste^lt 
,  in  order 
,  of  right, 
ly  absent 
alntained 
ed  States, 
the  hunt- 
jcts  would 
con)])lain. 
li  the  cer- 
,u,  or  tliat 
ests,  thus 
I'ies  to  be 
urests  are 
(rotection, 
ts,  even  if 
sh  wrongs 
t  employs 
it  will  be 
1  force  is 
,vn  courts, 
eserve  its 
/  injurious 
all  people 
gation  for 
iN'hich  are, 

lie  that  a 
jyond  the 
e  from  its 
lot.  That 
to  i)rovide 
rht  of  self- 


protection  or  self-preservation  does  not  end  with  Ihe  outer  line  of  mar- 
ginal or  territorial  waters.  In  the  very  nature  of  things  it  could  not 
end  with  that  line  without  rendering  the  right  valueless. 

Kuthcrford,  in  his  Institutes  of  Natural  Law,  gives  expression  to  views 
upon  the  doctrine  of  self  protection  which  are  universallv  accepted. 
lie  says:  "In  short,  the  true  principles  upon  which  our  right  of 
defeinling  either  our  persons  or  our  goods  depends  is  this:  The  law  of 
nature  does  not  oblige  us  to  give  them  up  when  any  )ne  has  a  mind  to 
hurt  them,  or  to  take  them  from  us;  and  that  the  law  of  nature  does 
not  oblige  us  thus  to  give  them  up,  is  evident;  because  our  right  to 
them  would  be  unintelligible,  or  would,  in  eti'ect,  bo  uo  right  at  all  if 
we  were  obliged  to  sutfer  all  mankind  to  treat  them  as  they  pleas'-d, 
without  endeavoring  to  prevent  it.  If  this,  then,  is  the  principle  upon 
which  the  right  of  defense  depends,  we  can  not  expect  to  tind  that  the 
law  of  nature  has  exactly  defined  how  far  we  may  go,  or  what  we  may 
lawfully  do,  in  endeavoring  to  prevent  an  injury  which  anyone  designs 
and  attempts  to  do  us.  The  law  allows  us  to  defend  our  persons  or 
our  property;  and  such  a  general  aHowance  iiui)lies  tliat  no  particular 
means  of  defense  are  prescribed  to  us.  We  may,  however,  be  sure 
that  whatever  means  are  necessary  must  be  lawful,  because  it  would 
be  absurd  to  suppose  that  the  law  of  initnre  allows  of  defense,  and  yet 
forbids  us  at  the  same  *^ime  to  do  what  is  necessary  for  this  purpose." 
liJc.  ],  c.  16,  Qd  Ameriam  id. 

All  illustration  of  these  princii»les  is  furnished  by  the  case  in 
the  Supreme  Court  of  the  United  States  t>f  Church  vs.  Huhbart  {2 
Granch\s  HcportH,  ISO,  ^31),  deci(b.«l  in  ISOt.  That  was  an  actMui  upon 
policies  of  insurance  upon  the  cargo  of  a  vessel,  which  contained  pro- 
visions exempting  the  insurance  comi)any  from  liability  in  case  of  a 
seizure  of  the  vessels  by  the  Portuguese  for  illicit  trade.  During  the 
life  of  the  policies  the  vessel  was  seized  by  the  Portuguese  and  con- 
demned iu  one  of  its  municipal  tribunals  for  a  violation  by  it  of  the 
laws  of  Portugal  prohibiting  commercial  intercourse  between  its  colo- 
nies and  foreign  vessels.  On  behalf  of  the  insured  it  was  contende«l, 
among  other  things,  that  the  policy  of  insurance  did  not  exempt  the 
company  from  liability,  uidess  the  seizure  was  Justilied  by  the  laws  of 
Portugal  and  by  the  law  of  nations.  Ilis  counsel  said:  "Thc^  sentence 
does  not  go  on  the  ground  of  illicit  trade.  At  most  it  only  exi>resses  a 
suspicion.  The  vessel  was  seized  Ave  leagues  from  the  land,  at  anchor 
on  the  high  seas.  The  seizure  was  not  Justified  by  their  [ Portuguese | 
laws.    She  was  not  within  their  territorial  jurisdiction.    By  the  '  w 


Wf'i  1 


200 


si 


I- 


i 

•  ■■ 

•i\  . 

i'i : 
Ml! 


1' 


'if' 


■!;  ' 
:  i  I 


of  nations  torritoi  iiil  Jnrlsdirtioti  r.\\  extend  only  to  tlie  diHtanoo  of 
cannon  sliot  IVoni  tln<  .shore.  Vattrl,  It.  f,  c.  31,  n.  3Sf),  3S:t.  A  vessel 
lias  a  ri^'lit  to  liovcr  on  the  coast.  It  is  no  canse  of  conil''innatiiiii.  It 
can,  at  most,  Jnsti  I'y  a  sei/nre  for  the  luirposo  of  ohtainin;;;  security  that 
hIio  will  not  violate  the  laws  of  the  country.  The  law  M'liich  is  pro- 
duced forbids  the  vessel  to  enter  a  port,  but  docvs  not  authori/.e  u  seiz- 
ure upon  the  ^»pen  sea.  (Ireat  Hritain,  the  greatest  coininercial  nation 
in  the  world,  has  extended  her  revenue  laws  the  whoht  length  of  the 
law  of  nations,  to  prevent  sinug;;'ling.  But  she  authori/cs  sei/iires  of 
vessels  only  within  the  limits  '»f  her  ports,  or  within  two  leagues  of 
the  coast;  and  then  only  for  the  purpose  of  obtaining  security"'.  4  Uac, 
Abr.,  rtlS.  Counsel  for  the  insurance  company,  referring  to  the  rule 
(iited  from  Vattel,  and  observing  tliat  it  had  reference  only  U)  the 
rights  <»f  a  neutral  territory  in  time  of  war,  said:  "It  is  a  very  indefi- 
nite rule  indcetl,  even  for  the  purpose  t<»  which  it  extends,  for  it  makes 
the  extent  of  a  nati<Mi's  territory  depend  upon  the  weight  of  metal  or 
projectile  force  of  her  cannon.  It  is  a  right  wiiich  must  resolve  itself 
into  power,  and  comes  to  thi^',  that  territory  extends  as  far  as  it  can  bo 
made  to  be  respe«!ted.  But  this  princiide  does  not  apply  to  the  right 
of  a  nation  to  cause  her  revenue  and  colonial  laws  to  be  respected. 
Here  all  nations  doa»«MMJC  at  least  a  greater  exti'ut  than  cannon  shot; 
and  otlier  passages  from  Vattel  show  the  distinctions  wiiich  Jire 
acknowli'dged  on  this  point." 

I  have  given  these  extracts  from  the  arguments  of  counsel  to  show 
that  the  question  was  distinctly  presented  whether  the  seizure  of  the 
vessel  by  the  Portuguese  autlioriti(!S.  outside  of  its  territorial  waters 
five  leagues  from  land,  was,  for  that  reason  merely,  illegal  under 
the  law  of  nations.  Upon  this  quostion  the  Supreme  Court  of  the 
United  States,  speaking  by  Chief  Justice  Marshall,  said: 

"That  tlie  law  of  nations  prohibits  the  exercise  of  any  act  of  authority 
over  a  vessel  in  the  situatimi  of  the  Aurora,  and  that  this  seizure  is, 
on  that  ac(!Ount,  a  mere  marine  trespass,  not  within  the  exception,  can- 
not be  admitted.  To  reason  from  the  extent  of  protection  a  nation  will 
alTord  to  foreigners  to  the  extent  of  the  moans  it  may  use  for  its  own 
security  does  not  seem  to  be  perfectly  correct.  It  is  opposed  by  princi- 
ples which  are  universally  acknowledged.  Tlie  authority  of  a  nation 
within  its  own  territory  is  absolute  and  exclusive.  The  seizure  of  a 
vessel  within  tlie  range  of  its  cannon  by  a  foreign  force  is  an  invasion 
of  that  territory,  and  is  a  hostile  act  which  it  is  its  duty  to  repel.    But 


taiice  of 

\.  VOSHJfl 

iiitii.    If 
rily  tliiit 
I  is  pro- 
;e  >v  SCI/i- 
ll iiiitioii 
,h  of  th(^ 
i/iircs  of 
liigncs  of 
.    /  line. 
the  rule 
y  to  the 
■y  iiulefi- 
it  makes 
metal  or 
live  itself 
it  ean  be 
the  rifiht 
3specteil. 
ion  shot; 
hich  are 

to  show 

of  the 

waters 

under 

of  the 

uthority 
iizure  is, 
,um,  can- 
itiou  will 
its  own 
y  princi- 
natiou 
ure  of  a 
invasion 
el.    Dut 


201 

its  imwer  to  seoure  itself  from  injury  may  eeitaiiuly  lie  oxerriscdbcyiuul 
the  limits  of  its  ttM-ritory.  lJp»u  tliisprincipli;  the  ri^ihtofa  Ix'llip'rent 
to  seai'trh  a  neutral  vessel  on  tin;  hiifh  seas  for  eontrahrand  of  war  is 
universally  admitted,  because  the  belligerent  has  aright  to  |>revent  the 
Injury  done  to  himself  by  the  assistanci;  intended  for  his  enemy;  so  t<N> 
a  nation  has  a  right  to  prohibit  any  eommoree  with  its  (M»lonies.  Any 
attempt  to  violate  the  laws  niaile  to  protect  this  right  is  an  injury 
to  itself  whiidi  it  may  prevent,  and  it  has  a  right  to  use  the  means 
necessary  for  its  prevention.  Tlicise  nn'ans  do  not  appear  to  be  limited 
within  any  (certain  marked  boundaries,  wliit'h  remain  the  sanu^it  all 
times  and  in  all  situati(uis.  If  they  are  such  as  unnecessarily  Ut  vex 
and  harass  foreign  lawful  comiuerc(s  foreign  nations  will  resist  their 
exorcise.  If  thoy  are  such  as  are  reasonable  and  necessary  to  secure 
their  laws  from  violation,  they  will  be  submitted  to. 

"  In  dilfereat  seas,  and  on  dilft'roat  eoasts,  a  wider  or  more  contracted 
range,  in  which  to  exercise  the  vigilamto  of  the  government,  will  be 
assented  to.  Thus  in  the  channel,  where  a  very  great  part  of  the  com 
merce  to  and  from  all  the  n(utli  of  Kurope  passes  through  a  very  narrow 
sea,theseizureof  vessels  on  suspicion  of  attempting  an  illicit  trade,  must 
ue;;e.-5sarily  bo  restricted  to  very  narrow  limits;  but  on  the  coast  ot 
Sanlh  Amep'ica,  seldom  IVe  jueuted  by  vessels  but  for  the  purpose  of 
illicit  trade,  the  vigilance  of  the  govciument  maybe  extended  some 
whit  further;  and  foreign  nations  submit  to  such  regulations  as  are 
reasonable  in  themselves,  and  are  really  neiiessary  to  secure  that 
mouopjly  of  «!olonial  commc.  je  whieh  is  claimed  by  all  nations  holding 
distant  posessions. 

"If  this  right  be  extended  too  far,  the  exercise  of  it  will  be  resisted. 
It  has  occasioned  long  and  frequent  contests,  which  h  ^ve  sometimes 
ended  in  open  war.  The  Entjlhh,  it  will  be  recollected,  complained  of 
the  right  claimed  by  Sxmln  to  search  their  vessels  on  the  high  seas, 
which  was  carried  so  far  that  the  guarda  castas  of  that  nation  seized 
vessels  not  in  the  neighborhood  of  their  coasts.  This  practice  was  the 
subject  of  long  and  fruitless  negotiations,  and  at  length  of  open  war. 
The  right  of  the  Si)aniards  was  sniiposed  to  be  exercised  unreasonably 
and  vexatiously,  but  it  never  was  contended  that  it  could  only  be 
exercised  within  the  range  of  the  cannon  from  their  batteries.  In<leed, 
the  right  given  to  our  own  revenue  cutters,  to  visit  vessels  lour  leagues 
from  our  coast,  is  a  declaration  that  in  the  opinion  of  the  Amcncan 
{government  no  such  principle;  as  that  contended  for  has  a  real  exist- 
ence."    Church  vs.  llubbart,  2  Cranch,  187,  334,  235, 


t 


rr 


202 


I' 


n 

li'i: 


The  (lill^jenco  of  lournojl  <!ouiik«'1  Ims  not  bro»<;lit  t<»  Ii;rlit  nny  ad- 
jii(l^('<l  «:i.S(>,  eitlicr  in  Kii;;1iiii(l  ur  in  Aiiii^rica,  wliicli  is  in  cnntlirt  witli 
ornio(lillu8  t4)any  oxtiMit  the  itriiiciph's  sninouiici'd  in  (Jhnrvh\ti.  Il'ib- 
hart.  If  the  ju(1;^iii«Mit  in  that  niHu  is  cunsistent  ^vitll  the  Nettled  prin- 
ciples of  internatiunal  hiw,  it  nai.st  tuUuw  that  the  ri^ht  uf  the  United 
HtateH  to  prevent  the  extermination  of  a  race  of  aninialM  u]M)n  whoHe 
existence  depends  an  ini|K>rtant  industry  maintained  within  its  limits — 
an  industry  which  is  a  source  of  revenue,  and  is  directly  connected 
with  the  government  of  the  mitivo  inhabitants  of  the  I'ribilof  Islands — 
is  not  to  be  denied  upon  the  ground  merely  that  such  force,  to  be  etl'ect- 
ive  to  accomplish  that  end,  must  be  used  on  the  high  seas  beyond  its 
territorial  waters. 

It  is  a  fact,  not  without  interest,  that  the  decision  in  Church  vs. 
lluhharl  was  referred  to  with  approval  in  the  o]>inion  of  Lord  Chief 
JusticeCockburn  (concurred  in  by  Lush  and  Field,  J.  J.  and  Po'lock  li.) 
in  the  great  case  of  The  i^uecn  vs.  Keyn  (L.  Ji.  2  EjcvU.  Div.,  (J3, 
aii).  The  principal  question  in  that  case  was  whether  an  English 
criminal  court  had  Jurisdiction  to  try  a  foreigiH^-,  charged  with  the 
olfense  of  manslaughter  connnitted  by  him  on  his  vessel,  a  foreign  ^hip, 
while  it  was  passing  within  three  miles  of  the  shores  of  England  ou  a 
voyage  to  a  foreign  port.  In  the  course  of  his  opinion,  the  Loid  Chief 
Justice  said:  "I  pass  on  to  the  statutory  enactments  relating  to  foreign- 
ers within  the  three  mile  zone.  These  enactments  may  be  divided,  Ist, 
into  those  which  are  intended  to  protect  the  interests  of  the  State  and 
those  which  are  not;  2d,  into  those  in  which  the  foreigner  is  expressly 
named,  and  those  in  which  he  has  been  held  to  be  included  by  impli- 
cation only.  Hitherto  legislation,  so  far  as  relates  to  foreigners  in 
foreign  ships  in  this  part  of  the  sea,  has  been  contined  to  the  main- 
tenance of  neutral  rights  and  obligations,  the  prevention  of  breaches 
of  the  rcv'iue  and  lishery  laws,  and,  under  particular  circumstances, 
to  cases  of  collision.  In  the  first  two,  the  legislation  is  altogether  irre- 
spective of  the  three-mile  distance,  being  founded  on  a  totally  ditter- 
ent  principle,  namely,  the  right  of  a  state  to  talcc  all  nccenmry  meas- 
ures for  the  protection  of  its  territory  and  rights  and  the  ])revention 
of  any  breach  of  its  revenue  laws.  This  principle  was  well  explained 
by  Marshall,  0.  J.,  in  the  case  of  Church  vs.  Hubbart  (2  Cranch,  234)." 
After  quoting  what  aj)poar8  in  the  above  extract  from  the  opinion  of 
Chief  Justice  Marshall,  tiie  Lord  Chief  Justice  proceeds:  "To  this 
class  of  enactments  belong  the  acts  imx)Osiug  2)eualties  for  the  viola- 


203 


t  nuy  ad 
llict  with 

V8.   //''&• 

tledpi-iii- 

0  UniU'il 
on  whose 
s  limits — 
;oiinecU'd 
[slaiul8 — 
be  ettect- 
uyuud  itt) 

hureh  vs. 

Old  Chief 

oUock  H.) 

Div.,  03f 

1  English 
with  the 

eign  ^hip, 
tiiud  ou  a, 
Old  Chief 
o  foreign - 
ided,  1st, 
St  site  and 
expressly 
)y  iinpli- 
ignors  in 
le  inain- 
br each 68 
Mstances, 
thei'  irre- 
y  ditter- 
ry  meas- 
revention 
xphiiiicd 
ch,  234)." 
pinion  of 
"To  this 
he  viola- 


tion of  iM'iilrahly  and  the  so  called 'llovciiitg  A(rts' and  acts  relating 
to  the  (;ustoins." 

I  have  not  nndcrstood  (counsel  to  qnestion  the  Viilidity,  under  the 
law  of  nations,  of  the  statutes  of  either  lOuglaud  or  the  United  Stales, 
ciunnionly  known  as  hovering  attts,  by  which  those  countries  asNunu> 
to  exert  their  authority  (if  nci'd  be,  employing  force)  beyond  tln^  line  of 
ti-rritorial  waters,  when  that  becomes  necessary  for  the  pnitection  of 
her  revenue  against  those  who  intend  to  violate  their  customs  laws 
and  regulations.  This  is  done,  to  repeat  the  words  of  Lord 
Chief  Justice  Cockburn,  in  the  exercise  of  "the  right  of  a  state 
to  take  all  necessary  measures  for  the  protection  of  its  territory  and 
rights  and  the  prevention  of  any  bn^atih  of  its  revenue  laws."  Suppose 
individuals  should  organize  in  England  a  plan  for  smuggling  goods 
into  the  United  States  in  violation  of  its  revenue  law,  and  to  that  end 
should  load  a  vessel  at  Liverpool  with  the  goods  thus  intended  to  be 
introduced  clandestinely  into  the  United  States  and  sail  from  one  of  the 
ports  of  that  country  in  direct  execution  of  their  illegal  scheme.  Would 
any  one  doubt  the  right  of  the  United  States,  if  the  circumstances 
made  that  course  necessary,  to  authorize  the  seizure  of  the  goods  in 
mid  ocean  and  confiscate  them?  Must  the  United  States,  in  such  a 
case,  forbear  to  take  any  steps  whatever  for  the  protection  of  its  rights 
and  its  revenue  until  the  vessel  gets  near  to  its  coasts!  Upon  what 
principle  can  the  right  to  cause  such  seizure  outside  of  territorial  waters 
and  within  the  distance  from  the  shore  fixed  by  hovering  acts,  be  any 
greater  than  that  of  seizing,  under  the  circumstances  stated,  in  mid- 
ocean  T 

Suppose,  ag  lin,  that  a  vessel  laden  with  rags  infected  with  yellow 
fever  were  on  its  way  to  one  of  the  ports  of  the  United  States.  Can  any 
one  doubt  that  the  government  of  that  country  would  be  entitled,  under 
the  law  of  nations,  to  cause  the  seizure  of  the  infected  rags  in  mid  ocean 
and  their  destruction,  if  that  mode  of  proceeding  were,  under  all  the  cir- 
cumstances, necessary  to  protect  its  people  against  the  danger  of  yellow 
fever  1 

It  seems  to  rao  that  the  question  as  to  the  extent  to  which  a  nation 
may  go  in  protecting  its  rights  depends  entirely  ou  the  circumstances  of 
each  particular  case.  If  the  rights  assailed  are  such  as  the  nation  may 
defend  and  preserve  against  the  wrongful  a<!ts  of  others,  then  it  may 
emjdoy,  at  the  place  of  attach,  from  tchich  the  injury  proceedn,  certainly,  if 
that  place  be  not  within  the  exclusive  jurisdiction  of  another  pouer,  all  the 


H 


204 

inonnH  nornssiiry  to  prov»Mit  t]w  rominis^^i'm  of  fiiosn  nrta.  In  tlio  rnsr 
lM^ror«His  it,  upiMNirH,  l>yov('i-\vlii>liiiiii;;<'vi<lciic<',  lli;il  if  |)|'i>I>ik><'  scaling; 
coiitiinios  lo  any  inatn-iiil  cxti'iit,  tlio  iiii|H»rtiiiit  iniliistry  wliicli  tlic 
IJiiiU'd  Sialics  lias  «'.sral»liMli«;i|  and  maintains,  at  ^rtMl  cxpcnsi',  on  tlic 
I'ribilol'  Islands,  tor  intrposcs  of  revunno  and  conitnt'rcc,  and  lor  tlio 
benefit  of  all  <!onntric.s,  nuist  lu'iisli  by  the  acts  of  individuals  and  aH- 
Hoeiations  of  individuals  connnitted  beyond  its  jurisdietional  liniitM,  on 
tiat  liiKh  seas,  where  the  8hi|)H  and  peoples  of  all  nations  are  upon  an 
equality — an  industry  whieh  has  never  beei  inti'rfercd  with  until  pelaj^ic 
Healers  devised  their  barbarous  methods  (or  slaiijjlit«'rin};  female  seals, 
8omeiinpre<;natA>d, some  heavy  with  ycmn;;,  and  others  siu;kliuK  mothers 
in  search  of  food  for  the  sustcnanue  of  themselves  and  their  olVspring. 
If,  as  already  sujjgested,  these  acts  are  done  in  the  exen'iseof  a  riyht 
reco{?ni/.cd  and  sei;ured  by  the  law  of  nations,  then  tiiey  can  not  be 
jirevented  or  restrained  by  the  United  States,  however  injurious  they 
may  be  to  any  business  conducted  within  the  territory  of  that  nation. 
Itut  if  those  acts  are  not  rccogni/ed  and  protecte<l  by  the  law  of  nations; 
if  no  one  can  claim  that  all  the  nations  have  assented  to  thedoi]i<;of  that 
on  the  hi^h  seas  which  no  single  nation  would  permit  to  be  done  within 
its  own  territory;  in  short,  if  no  one  has  the  riylit,  for  mere  temjHirary 
jiain,  to  destroy  useful  animals  by  methods  that  will  inevitably  and 
speedily  result  in  the  extermination  of  the  race,  then  the  United  States, 
whose  revenue  and  commerce  are  direvtli/  inrulred  in  the pn-Hervation  of 
ihnt  race,  may,  consistently  with  the  law  of  nations,  protecitits  interests 
by  preventinjj  the  commission  of  those  wrongfn   acts. 


■M'   .i 


If  the  views  which  I  have  expressed  are  shared  by  a  majority  of  the 
Arbitrators,  the  answer  to  the  fifth  question  of  Article  VI  of  the  treaty 
should  be 

That  the  herd  of  fur  seals  frequenting  the  islands  of  St.  Paul  and  St. 
(Jeorgein  IJering  Sea,  when  found  in  the  ocean,  beyond  the  ordinary 
tliree-mile  limit,  are  the  i)roi)erty  of  the  United  States,  and  as  long  as 
these  animals  have  the  habit  of  returning  from  their  migration-routes 
to,  and  of  abiding  upon,  those  islands,  as  their  breeding  grounds, 
so  that  their  increase  may  be  regularly  taken  there,  and  not  elsewhere, 
witlnmt  endangering  the  existence  of  the  race,  that  nation,  in  virtue  of 
its  ownership  of  such  herd  and  islands,  may  rightfully  employ,  for  the 
protection  of  those  animals  against  pelagic  sealing,  such  means  as  the 
law  permits  to  individuals  for  the  protection  of  their  property;  and. 

That  independently  of  any  right  of  property  in  the  herd  itself,  tbe 


206 


the  rnar 

seal  ill); 

lidi  Mu' 

\,  on  tlio 

tor  the 

and  iiH- 

iiiitM,  on 

upon  nn 

motluMS 
IVspriiii;. 
tf  a  rifjht 
III  not  be 
ous  tlu'y 
it  iiiition. 
'nations; 
i<;  of  that 
nc  within 
fiupoiaiy 
ilily  and 
d  States, 
rut  ion  of 
interests 


,y  of  the 
lie  tresity 

il  and  St. 
ordinary 

loiiff  as 
)n-rontes 
grounds, 
sewhcre, 
virtue  of 

,  for  the 

IS  a8  the 

;  and, 

self,  the 


United  iSt.ites,  simply  as  the  ownor  of  tlie  fur  seal  industry  iiiaintahied 
by  its  authority  on  tlie  islands  of  St.  l*aul  and  St.  (ieorge,  and  under 
the  doctrine  of  si>lf  protection,  may  cinphiy  such  means,  inchiding  force, 
as  may  hv.  necessary  to  prevent  the  c<uiiiiiissroii  of  actH  wliieli  will 
inevitably  result  in  the  speedy  exterininati(Hi  of  this  race  of  animals, 
th<^  basis  of  that  industry,  while  they  art^  in  the  lii}>h  seas  lK>yoiid  terri- 
torial waters,  and  temporarily  absent  fioin  thuir  brcedinj;'  giountU  or 
hind  home  on  those  islalld^i. 

4. 

CON<'|TRRR.'VT  IIKCIiri.^tTIOIVfl. 

Th(^  Tribunal  having  <leterniined  that  the  (ioveriimetit  of  the  Knited 
States  has  no  authority  or  Jurisdiction  in  MeriiigSea,  b(>yond  the  ordi- 
nary limit  of  territorial  waters,  except  sm^h  as  appertains  e<pially  to  all 
natioiis,  and  that  it  has  no  right  of  pro|)erty  in,  nor  any  ligui  to  pro- 
tect, tint  fur  seals  fre(|uenting  its  islands  in  that  sea,  when  tiiey  are 
found  outside  cd"  the  ordinary  three-mile  limit,  what  is  nnr  duty  iu 
respect  to  ('(nicurrent  Itegidations  for  the  protection  ami  i-ieservatu)ii 
of  these  aniHials? 

We  have  seen  that  by  tlie  Seventh  Article  4)f  the  Tr»  acy,  under 
which  the   1  nbunal  is  proceeding,  it  is  provided: 

"If  the  tleterinination  of  the  foregoing  <iuestions  as  to  the  exclusive 
jurisdiction  of  the  United  States  shall  leave  the  subject  in  such  position 
that  the  concurrence  of 'tJreat  Itritain  is  necessary  to  the  establishment 
of  Itj'gulations  for  the  proper  protection  and  preservation  of  the  fur 
seal  in,  or  habitually  resorting  to,  the  Bering  Sea,  the  Arbitrators  shall 
then  determine  what  concurrent  Regulations  outside  the  Jurisdictional 
limits  of  the  respectiv*^  Governments  are  necessary,  ami  over  what 
waters  such  Itegulations  should  extend,  and  to  aid  them  in  that  deter- 
mination the  report  of  a  Joint  Commission  to  be  apjioiiited  by  the 
respe<;tive  (Jovernmciits  shall  be  laid  betbre  them,  with  Buch  other 
evidence  as  either  Government  may  submit. 

"The  High  Contracting  Parties  furthermore  agree  to  coiiperate  in 
securing  the  adhesion  of  other  powers  t«>  such  Hegiilations." 

It  is  unnecessary  to  determine  whether  the  words  "  foregoing  ques- 
tions" ill  this  Article  refer  to  the  questions  specitically  mentioned  in 
Article  V'l,  or  to  those  of  a  more  general  chai**<^ter  enumerated  in 
Article  1  ul'  the  Treaty.  In  either  case,  we  must  proceed  to  consider 
the  subject  of  Regulations;  for,  if  the  United  States  has  no  "exclusive 
Jurisdiction"  over  the  waters  traversed  by  these  seals  in  their  annual 
mitfratiouH  (as  clearly  it  has  not);  it^  as  the  majority  of  the  Arbitrators 


t  I 


w 


:l 


m. 


!( 


206 

Lave  (leislared,  tliat  Nation  does  not  own  tliis  herd  of  seals  when  they 

are    in  the  high  seas,  beyoi\d  jurisdictional  limits,  and  can  not,  in 

• 
virtue  of  any  power  it  possesses,  protect  them  against  i»elagie  sealing; 

and  if,  as  the  same  majority  iiold,  Briti.sh  subjects  at  any  time,  or  by 
any  methods  they  choose  to  employ,  may,  when  unrestrained  by  the 
laws  of  their  own  country,  capture  and  kill  these  animals,  while  they 
are  in  the  open  waters  of  the  ocean,  and  without  limit  <as  to  the  num- 
bers so  taken,  it  is  too  clear  to  admit  of  discussion  that  the  concurrence 
of  Great  Britain  is  necessary  in  the  establishing  of  regulations  appli- 
cable to  its  own  subjects  and  to  waters  outside  the  jurisdictional  lim- 
its of  the  respective  Governments.  So  that  it  nmst  now  be  decided 
by  the  Tribunal,  whether  concurrent  regulations  are  necessary  for  "the 
proper  jtrotection  and  preservation"  of  the  sctals  while  they  are  in  the 
high  seas,  beyond  territorial  waters!  If  so,  over  what  waters  shall 
such  regulations  extend,  and  to  what  extent  must  pehigic  sealing  be 
restricted  ? 

If  1  have  not  misapprehended  what  has  been  said  by  Arbitrators 
during  this  Conference,  we  are  all  agreed  that  regulations  of  some  kind 
are  necessarj^;  indeed,  that  an  adjournment  of  this  Tribunal  without 
its  having  prescribed  regulations  "for  the  proper  protection  and  preser- 
vation of  the  fur  seal  in,  or  habitually  resorting  to,  the  Bering  Sea," 
would  be  regarded  as  a  violation  of  duty  upon  the  pari  of  its  members. 


''I 


i 


1', 


i.'i 


Hi  T 


It  has  been  suggested  that  the  Tribunal  is  without  powei",  under  the 
treaty,  to  establish  any  regulations  that  will  have  the  effect  to  suppress 
altogether  the  business  of  taking  these  animals,  in  the  high  seas,  by 
the  citizens  of  the  resi)cctive  countries  here  rei)resented ;  and  that 
the  duty  of  this  Tribunal — it  having  been  decided  that  pelagic  sealing 
is  not  forbidden  by  the  law  of  nations — is  to  prescribe  regulations 
that  will  n(>t  injux'e,  to  any  material  extent,  nuich  less  destroy,  the 
business  of  pelagic  sealing.  I  had  occasion,  at  (me  of  the  early  sessions 
of  this  Tribunal,  to  express  my  views  as  to  its  powers  or  competency, 
under  the  treaty,  in  respect  to  regulations.  My  opinion  then  was,  and 
is  now,  that  the  Tribunal  has  the  power,  and  is  under  a  duty,  from 
the  discharge  of  whi(;h  it  may  not  shrink,  to  prescribe  whatever  regu- 
lations are  necessary  for  the  protection  and  preservation  of  these  seals 
when  in  the  high  seas.  If  that  end  can  imt  be  accomplished  otherwise 
than  by  regulations,  which  either  expressly  or  by  their  operation,  pro- 
hibit all  pelagic  sealing,  then  it  is  our  duty  to  i)rescribe  regulations  of 
that  character. 


207 


len  tliey 
I  not,  in 
sealing;; 
le,  or  by 
tl  by  the 
liile  they 
tlio  nuni- 
icurrence 
US  iippli- 
onal  lini- 
!  (let'idod 
Mbv"tlie 
ire  in  the 
:ers  shall 
ealing  bo 

rbitrators 
lomc  kind 
il  without 
id  i)reser- 
ing  Sea," 
members. 

under  the 
suppress 
seas,  by 
and  that 
ic  sealing 
gulations 
troy,  the 
sessions 
iipetency, 
was,  and 
uty,  from 
ver  regu- 
lese  seals 
otherwise 
tion,  pro- 
lations  of 


But  it  is  said  that,  as  the  two  governments  have  agreed  "tocofSp- 
erate  in  securing  the  adhesion  of  other  powers  to  sueh  regulations"  as 
may  be  established,  the  Tribunal  must  do  nothing  Hkely  to  defeat  any 
effort  that  may  be  made  to  obtain  this  adhesion  of  other  nations.  If 
we  fiml  from  the  evidenee — and,  in  my  opinion,  the  evidence  conclu- 
sively shows — that  this  race  can  not  be  preserved,  but  will  be  entirely 
destroyed  for  all  commercial  purposes  if  pelagic  sealing  is  permitted  to 
any  material  extent,  then  our  duty  is  to  make  regulations  that  will 
protect  the  race  against  such  an  attack.  We  nnist  assume  that  civilized 
nations  will  approve  and  make  jipplicable  to  their  peoples  any  regula- 
tions which  have  for  their  object,  and  which  plainly  will  secure,  the 
])reservation  of  this  race  for  the  benefit  of  mankind.  Surely,  there 
can  not  be  "proi)er"  protection  and  preservation  of  these  seals,  when 
in  the  high  seas,  if  the  regulations  adopted  by  the  Tribunal  admit  of 
pelagic  sealing  to  an  extent  that  will  seriously  endanger  the  existence 
of  the  race.  If  that  mode  of  taking  these  seals  for  use  can  be  permitted 
to  an  extent  that  does  not  materially  endanger  the  integrity  of  the  race, 
then  I  concede  that  to  that  extent — the  Tribunal  having  determined 
the  questions  of  property  and  protection  against  the  United  States — it 
nuiy  be  allowed.  I  protest  against  any  interpretation  of  the  treaty 
which  assumes  that  other  nations  will  refuse  to  give  their  support  to 
any  regulations  except  such  as  are  based  upon  a  mere  compromiHC,  as 
between  Great  Britain  and  the  United  States,  which  leaves  this  race  of 
animals  unprotected  against  destruction. 

In  view  of  the  diplomatic  correspondence  which  has  been  [daced  in 
our  hands,  there  is  ground  for  surprise  at  the  earnestness  with  which 

is  contended  that  other  nations  could  not  be  expected  to  assent  to 
regulations  that  would  suppress  i)elagic  sealing,  and  that  this  Tribunal, 
when  considering  the  subject  of  regulations  applicable  to  the  peoples  of 
the  United  States  and  Great  Britain,  should  permit  the  inqiiry  as  to 
what  I'egulations  are  in  fact  necessary  to  be  controlled  by  conjecture 
as  to  what  might  be  agreeable  to  other  nations  than  those  who  made 
the  Treaty.  From  that  (jorrespoudence  (some  of  which  is  given  in 
the  margin*),  it  will  distinctly  appear  that  Lord  Salisbury  proposed 

*  What  is  now  tho  seventh  aitido  of  the  Treaty  was  proposed  by  President  Har- 
rison as  early  as  .June  25,  1891.     (U.  P.  f'aso,  Vol.  I.  App.,  319.) 

It  having  been  proposed  that  the  two  Governme»its  should  sign  the  text  of  the 
seven  articles  (o  be  in.sortiMl  in  the  Arbiir:iH(!:i  Agreement,  and  of  the  Joint  Coiiiiiiis- 
siuu  Article,  as  seti'cd  iu  tho  dipluniatie  correspondence,  iu  order  to  record  tuo 


m- 


(T  s 


'.'li    ■! 


208 

to  sign  the  articles  which  the  two  Govcrniuonts  agreed  should  be 
inserted  in  the  Arbitration  Agreeinent,  with  a  reservation  that  the 
Regulations  would  not  become  obligatory  on  Great  Britain  and  the 
United  States  "until  they  have  been  accepted  by  the  other  maritime 
powers."  President  Uarrison  refused,  through  Mr.  lilaine,  to  permit 
any  such  reservation.    Lord  Salisbury,  subsequently,  stated  that  his 

])i'();jrcss  inada  in  tlio  nogotiii^ions,  Sir  Julian  Pauncefoto  wrote  to  Mr.  IMaino, 
niidor  date  of  Novomber  23,  1891,  exproaaing  tbo  as.sont  of  Lord  Salislmry  to  tliat 
coil  ISO.  Uiit  for  tliu  purpobcs  of  obviating  any  doubta  that  might  arise  ati  to  tbu  moan- 
ing  of  Article  VII,  Sir  Jnlian  said,  in  tbat  letter: 

•'  IliH  lordship  undorstanda,  first,  that  the  uece.s.sity  of  any  rogiilatioiis  is  left  to 
the  Arbitrators,  as  well  iifi  the  nature  of  those  rpgiilations,  if  the  nect-ssity  is  in  their 
jiidgmont  proved;  secondly,  thai;  the  regulations  will  not  become  oI)ligatiiry  on 
(Jreat  Hritain  and  the  United  States  until  they  have  been  accejiti-d  by  the  otiicr 
niaritiinu  powers.  Otherwise,  as  his  lordship  observes,  the  two  Governments  would 
be  simply  handing  over  to  others  the  right  of  oxtenninating  the  seals. 

"I  have  no  doubt  that  you  will  have  no  dilHcuilty  in  eonouiriug  in  the  above 
reservations,  and,  subject  thereto.  I  shall  be  prepared  to  sign  the  arliclus  as  pro- 
posed." 

To  this  letter  Mr.  Rlaino,  November  27, 1891,  replied : 

"You  inform  mo  now  that  Lord  Salisbury  asks  to  make  two  reservations  in  the 
sixth  article.  His  lirst  reservation  is  that  'the  nect^ssily  of  any  rcgiilations  is  left 
to  the  arbitrators,  as  well  as  the  matter  of  those  regulations  if  the  necessity  is  in 
thi'ir  Judgment  proved.' 

'*  What  reason  has  Lord  Salisbury  for  altering  tlio  text  of  the  article  to  which  ho 
had  agreed?  It  is  to  be  presunu'd  that  if  regulations  nro  needed  they  will  be  made, 
if  they  are  not  needed  the  arbitrators  will  not  make  them.  The  agreement  leaves 
the  arbitrators  free  upon  that  point.  The  first  reservation,  therefore,  has  no  special 
meaning. 

"Tho  second  reservation  which  Lord  Salisbury  makes  is  that  'the  regulations 
shall  not  become  obligatory  on  Great  Hritain  and  the  United  States  until  they  shall 
have  been  aticejifed  by  the  other  maritinu;  ]>owers.'  Docs  I  .ird  Salisbiiiy  mean  that 
the  United  States  and  Great  Britain  shall  retrain  from  taking  seals  until  every  nmri- 
time  power  joins  in  the  regulations,  ov  does  he  mean  that  sealing  shall  1)0  resumed 
tho  Ist  of  May  luixt,  and  that  wo  shall  proceed  as  before  the  arbitration  until  tho 
regulations  have  boon  accepted  by  the  other  'maritime  powersf 

"  'Maritime  powers'  may  mean  one  thing  or  another.  Lord  Salisbnrj'  did  not  say 
tlie/j;  incijxi/  maii :  ime  j)owers.  France,  Spain,  Portugal,  Italy,  Aii.'-tria,  Turkey, Russia, 
(iermany,  Sweden,  Holland,  Belgium,  are  all  maritime  powers  in  tho  siuise  that  they 
nmintain  a  navy,  great  or  small.  In  like  luannor  Brazil,  tho  Argentine  Confedera- 
tion, Chile,  Peru,  Mexico,  and  .Japan  Jiro  maritime  powers.  It  would  require  a  long 
tinu',  three  years  at  least,  to  get  the  assent  of  all  tliese  powers.  Mr.  Hayard,  on  the 
I'Jth  of  August,  IHH7,  addressed  Great  Mritaiii,  (iermiiny,  Fiiiiiee,  K'nssia,  Sweden 
und  Norway,  and  Japan  with  u  view  to  securing  some  regulations  iu  regard  to  the 


'•1  i 


209 


;nlittionH 
icy  sliiill 
i)>iui  tli:it 
'ly  maii- 
resiimed 
until  tLo 

I  not  say 
y,Kii.s8ia, 
that  llicy 
onfediiii- 
10  a  lonjj; 
I,  on  the 
.•^wciU-n 
ril  tu  tht) 


Government  would  retain  the  right  of  raising  the  point  suggested 
"  when  the  question  of  framing  tlie  regulations  came  before  the  Arbitra- 
tors." He  wished  it  understood  that  the  Arbitrators  would  have  full 
discretion  in  the  matter,  and  might  attach  "  such  conditions  to  the  reg- 
ulations as  they  may  rt^jriort  judge  to  bo  necessary  and  just  to  the  two 
powers,  in  view  of  the  difliculty  pointed  out."    But  to  this  suggestion 


seals  iu  Bering  Sea.  Franco,  Japan,  and  liuHsia  replied  with  languid  inditference; 
Great  Britain  never  voplied  in  writing;  (jierniany  did  not  reply  at  all;  Sweden  and 
Norway  said  the  matt(^r  was  ufno  interest  to  thoni.  Thus  it  will  he  again.  Such  a 
proposition  will  postpone  the  matter  indelinitely. 

"The  President  regards  Lord  Salisl)ury'8  second  reservation,  therefore,  as  a 
material  change  in  the  terms  of  the  arhitration  agreed  upcm  by  this  Government; 
and  he  instructs  me  to  say  that  he  does  not  feel  willing  to  take  it  into  consideration. 
He  adheres  to  every  point  of  agreement  whicli  has  been  made  between  the  two 
powers,  according  to  the  text  which  yo\i  furnished.  He  will  regret  if  Lord  Siilia- 
bury  shall  insist  on  a  substantially  new  agreement.  He  sees  no  objection  to  sub- 
mitting the  agreement  to  the  prinei]tal  maritime  powers  for  their  assent,  but  he  can 
not  agree  that  Great  Britain  and  the  United  States  shall  make  their  adjustment 
dependent  on  the  action  of  third  parties  who  have  no  direct  interest  in  the  seal 
flsheries,  or  that  the  settlement  shall  be  postponed  until  those  third  parties  see  lit 
to  act." 

Sir  Julian  Pauacefote,  December  1,  1891,  in  acknowledgment  of  Mr.  Blaine's 
letter,  said: 

"As  regards  the  first  reservation.  Lord  Sal  isburj' observes  that  the  statement  con- 
tained in  your  note  that  the  clause  leaves  the  arbitrators  free  to  decide  whether 
regulations  are  needed  or  not,  assures  the  same  end  as  the  proposed  reservation, 
which  therefore  becomes  unnecessary  and  may  be  put  aside. 

"  With  n^spect  to  the  second  reservation,  his  lordship  states  that  it  was  not  the 
intention  of  Her  Majesty's  Goverumeut  to  defer  putting  int()  practical  execution  any 
regulations  which  the  .arbitrators  may  prescribe.  Its  objeit  is  to  prevent  the  fur- 
seal  fishery  in  Bering  Sea  from  being  placed  at  the  nien^y  of  some  third  jwwor. 
There  is  nothing  to  prevent  such  third  power  (Russia,  for  instance,  as  the  most 
neighboring  nation),  if  unpledged,  from  stopping  iu  and  securing  the  fishery  at  the 
very  seasons  and  in  the  very  places  which  may  be  closed  to  the  sealers  of  Great 
Britain  and  the  United  States  by  the  rogubitious. 

" Great  circumspection  is  called  for  iu  this  direction,  as  British  ami  American 
sealers  might  recover  their  freedom  and  evade  all  regulations  by  simply  hoisting  the 
flag  of  a  nonadhering  i)ower. 

"How  is  this  difficulty  to  be  mot?  Lord  Salisbury  suggests  th.it  if,  after  the 
lapse  of  one  year  from  the  date  of  the  decree  of  regulations,  it  shall  appear  to  either 
Government  that  serious  injury  is  occasioned  to  the  lishery  from  the  causes  above 
mentioned,  the  Government  complaining  may  give  notice  of  me  5*uspension  of  the 
regulations  during  the  ensuing  year,  and  in  such  case  the  regulations  shall  be  sus- 
pended until  arrangements  ai'(i  made  to  remedy  the  <'om]>laint. 

"Lord  Salisbury  further  proposes  that,  in  case  of  any  dispute  arising  between  tho 

11492 14 


1 


pi! 

If 
1'-* 


rn  V 

m 


210 

President  Harrison  reftised  his  assent,  and  expressly  denied  the  right 
of  the  British  Government  to  appeal  to  the  Arbitrators  to  decide  any 
point  not  embraced  in  the  articles  of  Arbitration.  Mr.  Blaine,  speak- 
ing for  the  President,  announced  his  willingness  to  sign  the  articles  of 
agreement  "  without  any  reservation  whatever."  And  the  representa- 
tive of  Great  Britain  at  Washington,  by  the  direction  of  Lord  Salis- 

two  Governments  as  to  the  gravity  of  the  injury  caused  to  the  fishery  or  as  to  any 
other  fact,  tlie  question  in  controversy  shall  be  referred  for  decision  to  a  British  and 
an  American  admiral,  who,  if  they  should  be  unable  to  agree,  may  select  an  umpire. 

"  Ijord  Salisbury  desires  me  to  ascertain  whether  some  provision  of  the  above 
nature  would  not  meet  the  views  of  your  Government." 

Mr.  Bl.aine,  under  date  of  December  2,  1891,  in  reply: 

"The  President  is  nuable  to  see  the  danger  which  Lord  Salisbury  apprehends  of  a 
third  nation  engaging  in  taking  seals  regardless  of  the  agreement  between  Great 
Britain  and  the  United  States.  The  dispute  between  the  two  nations  has  now  been 
in  progress  for  more  than  five  ye.ars.  During  all  this  time,  while  Great  Britain  was 
maintaining  that  the  Bering  Sea  was  open  to  all  comers  at  any  time  as  of  right, 
not  another  European  nation  has  engaged  in  sealing. 

"A  German  vessel  once  made  its  appearance  in  Bering  Sea,  but  did  not  return, 
being  satisfied,  I  suppose,  that  at  the  great  distance  they  have  to  sail,  the  Germans 
could  not  successfully  engage  in  sealing.  Russia,  whose  interference  Lord  Salisbury 
seems  to  specially  apprehend,  will  not  dissent  from  the  agreement,  because  such  dis- 
sent would  put  to  hazard  her  own  scaling  property  in  the  Bering  Sea.  On  the  con- 
trary, we  may  confidently  look  to  Russia  to  sustain  and  8*;rongthen  whatever  agree- 
ment Great  Britain  and  the  United  States  may  conjointly  ordain. 

"It  is  the  judgment  of  the  President,  therefore,  that  the  apprehension  of  Lord 
Salisbury  is  not  well  grounded.  He  believes  that,  however  the  arbitration  between 
Great  Britain  and  the  United  States  may  terminate,  it  will  be  wise  for  the  two 
nations  to  unite  in  a  note  to  the  principal  powers  of  Europe,  advising  them  in  full 
of  what  has  been  done  and  confidently  asking  their  approval.  He  does  not  believe 
that,  with  full  explanation,  any  attempt  will  be  made  to  disturb  the  agreement. 
If,  contriiry  to  his  firm  belief,  the  agreement  shall  be  disturbed  by  the  Interference 
of  a  third  power,  Great  Britain  and  the  United  States  can  act  conjointly,  and  they 
can  then  far  better  agree  npon  what  measure  may  be  necessary  to  prevent  the 
destruction  of  the  seals  than  they  can  at  this  time. 

"The  President  hopes  that  the  arbitration  between  Great  Britain  and  the  United 
States  will  be  allowed  to  proceed  on  the  agreement  regularly  and  promptly.  It  is 
of  great  consequence  to  both  nations  that  the  dispute  be  ended,  and  that  no  delay 
be  caused  by  introdncing  new  elements  into  the  agreement  to  (rhich  both  nations 
have  given  their  consent." 

Sir  Julian  Paunceforte,  Decembers,  1891: 

"  The  Marquis  of  Salisbury,  to  whom  I  telegraphed  the  contents  of  yonr  letter  of 
the  2d  instant  on  the  anbject  of  the  sixth  article  of  the  proposed  Bering  Sea  Arbi- 
tration agreement,  is  under  the  impresaion  that  the  President  has  not  rightly  ander* 


:l      ! 


he  right 
Bide  any 
),  speak- 
rticlea  of 
presenta- 
rd  Sails- 

p  as  to  any 

British  and 

nn  umpire. 

the  above 


ehenclB  of  a 
ween  Great 
18  now  hoim 
Britain  was 
as  of  right, 

not  return, 
he  Germans 
rd  Salisbury 
Lse  such  dis- 
On  the  con- 
tever  agree- 

ion  of  Lord 
ion  between 
for  the  two 
them  In  full 
not  believe 
agreement, 
interference 
ly,  and  they 
prevent  the 

1  the  United 
nptly.  It  is 
liat  no  delay 
both  nations 


onr  letter  of 
ag  SeaArbi- 
;htly  undey- 


211 

bury,  signed  thcni,  distinctly  stating  that  they  were  signed  (ut  proposed 
in  Mr.  Blaine's  note,  that  is,  "  tpithont  any  reservation  whatever.^^  And, 
now,  it  is  contended  that  while  this  Tribunal  nuiy  not  make  the  adhe- 
sion of  other  maritime  powers  to  our  Regnhitions  a  condition  precedent 
tc  their  being  obligatory  upon  tlie  United  States  and  Great  Britain,  it 
may,  nevertheless,  i)roperly  refuse  to  prescribe  regulations  that  will 

stood  his  lordship's  approliension  witli  rofercupo  to  the  regulations  to  be  made  by 
the  Arbitrators  uuder  that  article.  His  fear  is  not  tliat  the  otlicr  powers  will  reject 
the  rt^gulations,  but  that  they  will  refuse  to  allow  the  arrest  by  liritish  and  Amer- 
iCfin  cruisers  of  sliips  under  their  fl.'ig  wliicli  may  eugage  in  the  fur  se.il  fishery  in 
violation  of  the  regulatiouH.  .*<uch  refusal  is  higlily  pmbable  in  view  of  tlio 
jealousy  which  exists  as  to  tlie  right  of  search  on  tlio  liigli  seas,  aud  the  (•<m.sc(iuen<'e 
must  inevitably  be  that  during  the  close  season  scaling  will  go  on  under  other 
flags. 

"  It  can  not  be  the  intention  of  the  two  Governments,  in  signing  the  proposed 
agreement,  to  arrive  at  such  a  result. 

"I  do  not  understand  you  to  dispute  that  should  such  a  state  of  things  arise  the 
agreement  must  collapse,  as  the  two  Governments  c^ould  not  bo  expected  to  enforce 
on  their  respective  national  regulations  which  are  violated  under  foreign  flags  to 
the  serious  injury  of  the  fishery. 

"I  hope,  therefore,  that  on  further  consideration  the  Presidi'nt  will  recognize  the 
importance  of  arriving  t,t  some  understanding  of  the  kind  suggested  in  my  note  of 
the  Ist  instant." 

Mr.  Blaine,  December  10, 1891,  in  reply : 

"In  reply  to  your  note  of  the  8th  instant  I  have  the  following  observations  to 
make : 

"First.  Ever  since  the  Bering  Sea  question  has  been  in  dispute  (now  nearly  six 
years)  not  one  ship  from  France  or  Germany  has  ever  engaged  in  sealing.  This 
affords  a  strong  presumj)tion  that  none  will  engage  in  it  in  the  future. 

"A  still  stronger  ground  against  tlieir  taking  jtart  is  that  they  can  not  ■■ifl'ord  it. 
From  France  or  Germany  to  Bering  Sea  by  the  sailing  line  is  nearly  20,000  miles,  and 
they  would  have  to  make  the  voyage  with  a  larger  sliip  than  can  be  profitably  em- 
ployed in  scaling.  They  would  have  to  start  from  home  the  winter  preceding  the 
sealing  season,  a-  '^  "'sk  an  unusually  hazardous  voyage.  Wiien  they  reach  the  fish- 
ing grounds  they  lip.ve  no  territory  to  which  they  could  resort  for  any  purpose. 

"Third.  If  we  wait  nntil  we  get  France  to  agree  that  her  ships  shall  be  searched 
by  American  or  British  cruisers  we  will  wait  until  tlie  last  seal  is  taken  in  Bering 
Sea. 

"Thus  much  for  France  and  Germany.  Other  European  countries  have  the  same 
disabilities.  Russia,  cited  by  Lord  Salisbury  as  likely  to  embarrass  the  United 
States  and  England  by  interference,  I  shotild  regard  as  an  ally  and  not  an  enemy. 
Nor  is  it  probable  that  any  American  country  will  loan  its  flag  to  vessels  engaged  in 
violating  the  Bering  Sea  regulations. 

"To  stop  the  arbitration  a  whole  month  on  a  question  of  this  oharacter  promises 


i 


ir 


212 

suppress  or  materially  climinisli  pelagic  scaling,  however  neocssaTy 
such  regulations  maybe  for  the  protection  and  preservation  of  this  race 
of  animals,  if,  in  view  of  all  the  probabilities  of  the  situation  we  con- 
jecture— it  can  be  nothing  more  than  conjecture — that  other  nations 
will  not  approve  them.  This  would  enable  Great  Britain  to  accomplish 
precisely  what  it  could  have  accomplished  bad  it  been  permitted  to 
sign  the  Treaty  with  a  reservation  of  authority  for  the  Arbitrators  to 
make  the  assent  of  the  maritime  powers  a  condition  of  our  regulations. 


ill  for  its  success.  Somo,  other  less  important  question  even  tlian  this,  if  it  ran  bo 
found,  may  probably  be  started.  The  etfoct  can  only  bo  to  exhaust  tlie  time  allotted 
for  arbitration.  We  must  aet  mutually  on  what  is  probable,  not  on  what  is  re- 
motelj'  ]ios8iblo. 

"  The  President  8ug<>e*'t*'  again  that  the  proper  mode  of  prooeedinji;  is  for  regula- 
tions to  bo  agreed  upon  between  tlie  United  States  and  Great  Britain  and  then  sub- 
mitted to  the  principal  maritime  powers.  That  is  an  intelligent  and  intelligible 
process.  To  stop  now  to  consider  the  regulations  for  outside  nations  is  to  indefi- 
nitidy  postpone  tlio  whole  l|U(^stiou.  ..'lie President,  therefore,  adlierosto  his  ground 
first  announced,  that  we  must  have  the  arbitration  as  already  svgrcod  to.  Ho  sug- 
gests to  Lord  Salisbury  that  any  other  process  might  make  the  arbitration  imprac- 
ticable within  the  time  sjiccificd." 

Sir  Julian  Pauncefote,  under  date  of  December  11,  1801: 

"I  have  the  honor  to  inform  you  th.at  I  telegraphed  to  the  Marquis  of  Salisbury 
the  substance  of  your  note  of  yesterday  respecting  the  sixth  ai'ticle  of  the  proposed 
Bering  Sea  arbitration  agreement,  and  that  I  have  received  a  reply  from  his  lord- 
ship to  the  following  effect:  In  view  of  the  strong  opinion  of  the  President,  reiter- 
ated in  your  note  of  yesterday,  that  the  danger  apprehended  by  Lord  Salisbury,  and 
explained  in  my  note  of  the  8th  instant,  is  too  remote  to  justify  the  delay  which 
might  be  incurred  by  guarding  against  it  now,  his  lordshi])  will  yield  to  the  Presi- 
dent's a])pcal  and  not  press  for  further  discussion  at  this  stage. 

"Her  Majesty's  Government  of  course  retain  the  right  of  raising  the  point  Avhen 
the  question  of  framing  the  regulations  comes  before  the  arbitrators,  and  it  is  mider- 
stood  that  the  latter  will  have  full  discretion  in  the  matter,  and  may  attfich  such 
conditions  to  the  regulations  as  they  may  a  jirhri  judge  to  bo  necessary  and  just  to 
the  two  powers  in  view  of  the  dilfieulty  pointed  out. 

"With  the  .above  observations  Ijord  Siilisl>ury  has  authorized  me  to  sign  the  text 
of  the  seven  articles  and  of  tlio  joint  commission  article  referred  to  in  my  note  of 
the  23d  ultimo,  and  it  will  give  mo  much  pleasure  to  wait  upon  you  at  the  State 
Department  for  that  purpose  at  any  time  you  may  appoint." 

Mr.  Blaine,  December  11,  1891,  in  reply: 

"I  have  the  hoiior  to  advise  you  that  I  submit led  your  note  of  the  11th  instant  to 
the  President.  After  mature  deliberation  he  has  iustructod  me  to  say  that  he  objects 
to  Lord  Salisbury's  making  any  reservation  at  all,  and  that  he  cannot  yield  to  him 
the  right  to  appeal  to  the  arlvitrators  to  decide  any  point  not  embraced  in  the  arti- 
cles of  arbitration.    The  President  docs  not  admit  that  Lord  Salisbury  can  reserve 


213 


leocasary 
this  race 
I  we  con- 
)T  nations 
jcomplish 
initted  to 
trators  to 
gnlations, 

if  it  can  1)0 
mo  allotted 
what  is  10- 

i  for  roRula- 
(l  then  snb- 
intclligil)lo 
is  to  indefi- 
»  his  ground 
o.  Ho  sag- 
ion  iinprac- 


»f  Salialtnry 
ho  proposed 
oni  his  lord- 
dent,  reiter- 
ilshnry,  and 
lelay  which 
o  the  rresi- 

point  when 

it  is  under- 

attarh  surh 

and  just  to 

ign  tho  text 
my  note  of 
it  tho  State 


li  instant  to 
t  he  ohjects 
neld  to  him 
in  tho  arti- 
can  reserve 


vvliether  selfexecntiiigf  or  not,  becoming  obligatory  upon  Gresit  Britain 
and  tlio  United  States.  I  can  not  bolieve  tiuit  tills  Tribunsil  will  pro- 
ceed upon  any  such  ground  an  that  uovv  suggested  by  the  Counsel  for 
Great  Britain. 

During  the  arffument  much  was  said  about  the  mode  in  which  tlie 
business  of  taking  fur  seals  on  the  Pribilof  Islands  had  been  conducted 
by  the  licensees  of  the  United  States.    It  was  said  then,  and  the  sug- 

the  right  in  any  way  to  aU'ect  the  decision  of  the  arbitrators.  Wo  niiderstan<l  that 
the  arbitration  is  to  (irociicd  on  tho  seven  points  whicli  are  contained  in  the  articles 
which  you  and  I  ccsrtify  were  tho  very  points  agreed  upon  by  the  two  (invcrnments. 

"For  r^onl  Salisbury  to  ehiiui  tlio  right  to  submit  this  new  point  to  tiie  Arbitra- 
tors is  to  entirely  change  tile  arbitration.  Tho  I'resident  might,  in  lil<e  manner, 
submit  several  questions  to  the  Arbitrators,  and  thus  enlarge  the  subject  to  such  an 
extent  that  it  would  not  be  tho  same  arbitration  to  which  wo  liave  agreed.  The 
i'resident  claims  the  right  to  have  tlu'  seven  jioints  arl)itr:ite(l,  and  resiiectlully 
insists  that  J.ord  Salisbury  shall  not  (change  tlitdr  meaning  in  any  parti<ular.  Tho 
matters  to  be  arbitrated  must  be  distiui-tly  understood  befon*  tlie  Arbitrators  are 
chosen.  And  after  au  arbitration  is  agreed  to,  neither  of  the  parties  can  tsnlargo  or 
contract  its  scoi»e. 

"I  am  prepared  now,  as  I  have  becu  heretolbre,  to  sign  the  articles  of  agreement 
without  any  reservation  whatever,  and  for  tliat  purpose  I  shall  be  glad  to  have  you 
call  at  tho  State  Department  on  Wednesday  the  IGtli  instant,  at  11  o'clock  a.  m." 

Sir  .Julian  I'auiicefote,  l)ecoiiil)cr  17,1891: 

"I  have  the  honor  to  inform  you  that  I  conveyed  to  tlio  Marfjiiis  of  .Salisbury,  bv 
telegram,  the  substance  of  your  iioteof  the  lltli  instant,  respecting  the  sixth  article 
of  the  proposed  Ueriiig  Sea  Arbitration  agreement,  and  that  I  have  received  a  reply 
from  his  lordsliiit  in  the  following  sense: 

"Lord  Salisbury  is  afraid  that,  owing  to  the  dilHculties  incident  to  telegraphic 
communications,  he  has  been  im|)erfcctly  umlerstood  l»y  the  ['resident.  He  con- 
sented, at  tho  I'resident's  rcii'.iest,  to  defer  for  the  present  all  further  discussion  as 
to  what  course  the  two  Governments  should  follow  in  the  event  of  the  regulations 
prescribed  by  the  Arbitrators  being  evaded  by  a  change  of  flag.  It  was  necessary 
that  in  doing  so  ho  shoulil  guard  himself  against  the  sniiposition  that  by  such  con- 
sent he  had  narrowed  the  rights  of  tho  contending  parties  or  of  the  Arl)i  trators  under 
the  agreement. 

"But  in  the  communication  which  was  embodied  in  my  note  of  the  llth  instant, 
his  lordship  made  no  reservation,  as  the  I^resident  seems  to  think,  nor  was  any  such 
word  used.  A  reservation  would  not  be  valid  unless  assented  to  by  the  oth«r  side, 
and  no  such  assent  was  asked  for.  Lord  Salisbury  entirely  agrees  with  the  Presi- 
dent iu  his  objection  to  any  point  jeing  submitted  to  tho  Arbitrators  which  is  not 
embraced  iu  the  agroemeuu  and,  in  conclusion,  his  lordship  authorizes  mc  to  sign 
the  articles  of  the  arbitration  agreement,  as  proposed  at  the  close  of  your  note  under 
rejjly,  whenever  you  may  be  williui;  to  do  so."    (U.  S.  Case,  vol.  1,  App.  339  to  315). 


'.  11 


>      !| 


214 


I 


Uy 


Ml-''  ■; 

II' 


r,% 


Im  -^ 


III. 


Hi!  !; 

0 


L  .1 


gcstion  has  been  repeiite<l  liero,  that  tlie  present  depleted  condition  of 
this  race  is  due  laryj'Iy,  it  not  principally,  to  unreasonid)ly  larye  drafts 
made,  tor  many  years  past,  upon  nialv  seals  wliihi  they  were  on  the 
breeding  grounds,  whereby  vast  numbers  of  that  sex,  eomi)etent  for 
service,  and  which  ought  to  have  been  preserved  for  purposes  of  repro- 
duction, have  been  killed.  This  suggestion  is  unsupported  by  any  fair 
view  of  the  evidence.  What  has  been  said  on  that  subject  by  some  wit- 
nesses, notably  by  Prof.  Elliott,  is  in  gross  exaggeration  of  the  facts. 
^o  complaint  ciin  be  justly  made  of  tlie  rules  that  have  been  prescribed 
by  the  United  States  in  regulation  of  the  taking  (»f  these  seals  on  the 
islaiuls.  And  it  must  be  concede<l  that  those  rules,  if  observed,  do  not 
admit  of  the  taking  of  an  undue  proportion  of  males.  The  killing  of 
female  seals  on  the  islands  is  absolutely  prohibited.  While  in  particular 
years  there  was  mihinanagenuMit  to  som^  extent  on  the  islands,  nothing 
done  or  omitteil  to  be  done  there,  at  any  time  within  the  past  tifteen  or 
twenty  years,  accounts  for  the  recent  and  extraonlinary  diminution  in 
the  number  of  seals  frequenting  those  islands  during  the  breeding  sea- 
sou.  There  is,  in  my  judgment,  no  possible  escape  from  the  conclusion 
that  such  diminution  is  the  direct  result  of  pelagic  sealing. 

What  has  or  has  not  been  done  or  omitted  on  the  islands,  or  what 
may  hereafter  be  done  there,  can  not  be  made  an  element  in  the  present 
inquiry.  This  Tribunal  has  no  autlnuity  to  deal  with  the  management 
of  the  seals  while  at  tiieir  breeding  grounds  on  the  islands  of  St.  Paul 
and  St.  (Jeorge,  any  more  than  with  the  mode  of  taking  them  within 
the  territorial  waters  of  Canada.  The  United  States  would  never  have 
submitted  to  this  or  to  any  other  Tribunal  a  question  involving  its 
complete  control  over  these  seals  while  on  its  islands  or  within  its  ter- 
ritorial waters.  It  would  not  bi'ook  any  iuterference  with  the  authority 
which  appertains  to  it  within  its  own  territorial  limits.  Proper  resjtect 
for  the  Government  of  that  nation  (sompels  us  to  assume  that  it  has 
the  desire  to  correct,  and  will  correct,  any  abuses  that  have  existed, 
or  that  may  hereafter  exist,  in  the  conduct  of  the  fur  seal  industry 
on  the  Pribilof  Islands;  just  as  we  must  assume,  that  the  Govern- 
ments of  Great  Britain  and  of  Canada,  after  this  Tribunal  has  made 
its  award,  will  properly  control  the  taking  of  seals  within  territorial 
waters. 

The  two  nations  here  represent<!d  took  care  to  exclude  from  the  con- 
sideration of  this  Tribunal  all  nuitters  affecting  their  sovereign  authority 
within  jurisdictional  limits,  and  therefore  restricted  in<i[uiry  timching 
the  proper  protection  and  preservation  of  these  seals  "to  concurrent 


216 


ition  of 
n  diafts 
oil  the 
tent  for 
if  repro- 
aiiy  fair 
)n\c  wit- 
lie  facts, 
escribed 
s  on  tlie 
1,  do  not 
Lilling  of 
art  icular 
,  nothing 
liiteen  or 
luition  in 
ding  seu- 
>uclu8iou 

,  or  what 
e  present 
igenient 
St.  Paul 
ni  within 
ver  have 
ivmg  its 
n  its  ter- 
iiuthority 
r  vesiK'ct 
it  it  has 
existed, 
industry 
Govern- 
las  made 
erritorial 

I  the  con- 
authority 
touching 
uucurreut 


reguhitions  outside  th 


risdictional  limits  of  the 


respective  Govern- 
ments." The  irrelevancy,  when  considering  the  subject  of  legnlations, 
of  any  inquiry  as  to  what  has  been  done  or  omitted  to  be  done  on  the 
ishmds,  is  apparent  in  view  of  one  fact  clearly  establisiied  by  the  evi- 
dence, namely:  That  pelagic  sealing  to  any  material  extent — that  is,  to 
such  extent  as  will  be  profitable  to  sealers — will  8i)eedily  exterminate 
this  race,  ««'<;» //'//»(/'  taking  of  seals  is  entirely  stiupcniled  on  the  inlands, 
and  the  United  States  should  expend  time  and  money  in  protecting  the 
seals  during  the  breeding  season,  in  order  simply  that  pelagic  sealers 
may  not  bo  disturbed  in  their  occupation  of  killing  suckling  fenuiles 
while  in  the  ocean  in  search  of  food  for  the  sustenance  of  themselves 
and  their  young,  (U- in  their  business  of  capturing  and  cutting  open 
thebodiesof  mother  seals,  heavy  with  young,  and  throwing  the  unborn 
I)ups  into  the  ocean. 

Our  nuinifest  duty  is  to  inquire  what,  under  the  evidence,  is  the 
effect  of  pelagic  sealing,  in  and  of  itself;  and,  according  to  the  result  of 
that  inquiry  and  without  any  reference  whatever  to  what  has  occurred 
<u'  may  occur  on  the  islands  in  respect  of  this  race  of  animals,  and 
without  regard  to  the  special  interests  either  of  the  United  States  or 
of  i)elagic  sealers,  we  should  establish,  or  by  our  award  impose  upon 
the  two  nations  here  representiid  the  duty  of  establishing,  such  regu- 
lations, "<mtside  the  jurisdictional  limits  of  the  respective  Govern- 
ments "  as  are  necessary  for  the  proper  protection  and  preservation  of 
this  herd  of  fur  seals.  Anything  less  from  this  Tribunal  will  shake  the 
confidence  of  the  world  in  the  efficacy  of  arbitration  as  a  means  of  com- 
posing differences  between  nations  in  respect  to  matters  of  great  mo- 
ment and  interest. 

I  now  come  to  the  important  practical  question  as  to  what  regula- 
tions, in  view  of  all  the  evideiice,  are  necessary  for  the  proper  i)rotec- 
tion  and  preservation  of  this  herd  of  seals. 

We  have  seen  that  these  seals  begin  to  leave  the  islands  in  Septem- 
ber, and  by  November  substantially  all  of  them  are  in  the  North  I'a<;ilic 
Ocean,  south  of  the  Aleutian  Islands.  During  December  they  may  be 
found  off  the  coasts  of  the  United  States,  north  of  the  35th  degree  of 
north  latitude.  lu  January  they  tui'n  their  faces  northward,  and  move, 
generally  in  small  schools  or  bands,  along,  but  some  distance  from,  tlie 
coasts  of  the  United  States  and  British  Columbia.  Those  in  advance 
go  through  the  passes  of  the  Aleutian  Islands,  on  their  way  back  to  the 
Pribilof  Islands,  early  in  June.    They  are  moving  through  those  passes 


216 


m 


'  .  !;  I 


m  H 


dining  tlio  whole  of  tliat  inontli.  By  tlie  1st  or  lOtli  of  .Inly,  tlie  entire 
licitl  liiis  left  the  Norlli  PiU'ide  jiimI  ieasseiiil»le<l  at  llieir  bieediiiff 
groiiiuls  on  the  islands  of  St.  I'sinl  and  St.  (Jeor^ie.  As  soon  as  the 
mother  seals  reattli  tlm  islainls,  or  within  a  very  few  «lays  thereafter,  they 
j;ivebiith  to  their  ptips,  and  tak»^  position  with  the  hnlls  by  whoni  they 
have  been  appropriated.  Aeeordinj;  to  the  evidence,  the  pups  require 
su8t<Mi\iice  from  theii'  mother,<  for  about  eiyht  or  ten  weeks.  During 
tinit  period,  say,  duriiifj;  duly  and  August,  the  mother  seals,  in  vast 
numbers,  go  out  into  the  sea,  in  every  dire(;tion,  often  to  the  distance  of 
lUOand  !')(>  miles,  in  (juest  of  food  to  sustain  themselves  and  their  young. 
Seals  have  been  taken  in  the  North  Paeilie  in  January,  Ft^bruary,  and 
March,  but  not  to  any  great  extent.  The  opportunity  foi-  taking  them 
improves  as  the  season  advances.  The  last  half  of  April  and  the 
months  of  May  and  dune  are  favorable  tor  jtelagic  sealing,  particularly 
the  two  months  hist  named.  In  liering  Sea  the  months  of  Jidy  and 
August  are  also  very  favorable  for  seal  hunting.  VV^hile  seals  may  be 
taken  in  that  sea  during  September,  it  is  not,  as  a  general  rule,  profit- 
able to  pursue  the  business  there  after  August,  or,  at  any  rate,  after 
the  middle  of  September.  The  i)rincipal  n)ischiefs  from  pelagic  sealing 
have  come  from  the  killing  of  the  seals  in  May  and  dune,  in  the  North 
racitic,  while  the  herd  is  nu>ving  northward  to  their  laiul  lumie,  and 
from  the  killing  in  .Inly  and  August,  in  Bering  Sea,  of  breeding  fenndes 
which  have  left  their  pups  (ni  the  islands  for  a  time  and  gone  into  the 
sea  in  search  of  food. 

Our  attention  has  been  called  to  various  schemes  of  regulations.  In 
1888  Mr.  Bayard  proposed  a  closed  season  for  the  period  between  April 
15  and  November  1  of  every  year,  during  which  the  citizens  or  sub- 
jects of  the  United  States  and  Great  Britain  should  be  inevented  from 
killing  fur-seals  with  firearms  or  other  destructive  weapons,  "  north  of 
60°  of  north  latitude,  aiul  between  100°  of  longitude  west  and  170°  of 
longitude  east  of  Greenwich."  But  a  much  better  scheme  was  agreed 
upon,  provisionally,  as  a  basis  of  negotiations,  at  the  conference  subse- 
(juently  held,  in  London,  April  1(},  1888,  between  the  representa,tives  of 
the  United  States,  Great  Britain,  and  Russia.  By  that  scheme,  if  it 
had  been  put  into  operation,  a  closed  season,  extending  from  April  15 
to  November  1  would  have  been  established,  during  which  no  seals  could 
be  killed  iu  "  the  sea  between  America  and  Btissia,  north  of  the  47°  of  lat- 
itude.''^ But  this  scluMue  failed  of  adoi)tion  because  of  the  intervention 
and  protest  of  Canada,  which  was  effectual  to  prevent  Lord  Salisbury 


217 


agreed 

subse- 

Itives  of 

16,  if  it 

k^pril  15 

Is  could 

of  lat- 

/ention 

llisbury 


from  ndlieririf;  to  it  as  a  final  settlement  of  tlio  eontroversy.  At  a  later 
8tajitH>f  tlio  negotiations  In'twccn  tiie  I'nited  States  iind  tJieat  I'.iitain, 
Mr.  lllaine  expressed  tlie  willingness  of  tlie  I'nited  .States  to  ae<'0|>t 
a  settlement  ii])on  the  basis  of  a  zone  of  20  mai  ine  leagues,  witliin  whieh 
no  sliip  slionid  In»\«'r  around  the  islands  of  St.  I'anl  and  St.  (leorgo 
from  the  ir»tli  of  .May  to  the  lotii  of  October  of  eaeh  year.  U.  S.  Cane, 
Vol.  T,  A  pp.,  2S4. 

It  is  said  tliat  the  sehemo  of  regulations  now  proposed  by  tlie  United 
States  is  far  nior«^  stringent  than  tliat  jjroposed  by  Mr.  IJayard  and 
JMr.  Blaine,  on  Ix'luilf  of  the  United  States.  That  is  true.  IJiit  it 
slionhl  be  reinembeied  that  at  the  time  tin*,  schemes  of  Mr.  Bayard 
and  Mr.  IMaine  were  projjosed,  the  facts  of  s<}al  life  were  not  so  well 
known  as  now,  so  full  hav»'  been  the  recent  investigations  unide  by 
the  two  (loverinnents,  with  direct  reference  to  tiie  present  controversy, 
and  for  the  i>uri»ose  of  ascertaining  what  was  rcipiired  in  order  to 
l>reserve  this  race  of  animals  from  extermination,  in  view  «)f  the 
fnlhu"  knowledge  all  now  have  on  the  subject,  no  oiui  would  be  so 
wanting  in  frankness  as  to  say  that  this  race  of  useful  animals  could 
possibly  survive  pelagic  sealing  under  the  sc^heme  proposed  by  Mr. 
IJayard,  or  under  that  ])roi)os«.<l  by  Mr.  l>laine.  While  the  British 
liovernment  has  c(uitrasted,  to  the  disadvantage  of  the  United  States, 
the  scheme  now  proposed  by  the.  latter,  with  the  propositions  nnido 
by  Mr.  Bayard  and  Mr.  Blaine,  the  United  States  Ciovernment  con- 
trasts, to  the  disadvantage  of  Great  Britain,  the  scheme  now  pro- 
])osed  by  Her  Britannic  Majesty  with  that  acceded  to,  provisionally, 
by  Lord  Salisbury  iu  1888.  I  am  of  opinion  that  the  deternnnatiou 
of  the  question  before  us  should  not  depend  upon  considerations  of 
this  kind.  It  is  of  no  conse(|uence,  in  the  present  intpiiry,  that  the 
respective  governments  were  willing,  atone  time,  to  accept  regulations 
ditferent  from  those  now  proposed.  We  nuist  determine  the  question  of 
regulations  in  the  light  of  the  facts  now  disclosed.  If  we  prescribe 
regulations  that  are  inadequate,  we  will  not  stand  acquitted  in  our  own 
consciences,  or  before  the  world,  by  the  circumstance  that  that  which 
is  done  may  have  been  approved  by  the  two  Governments  or  either  of 
them  at  sometime  in  the  past,  when  the  facts  were  not  fully  developed. 

At  a  former  meeting  of  this  Tribunal  I  presented  a  scheme  of  reg- 
ulations which,  in  the  judgment  of  my  colleague,  Senator  iMorgaii,  and 
myself,  are  adequate  for  the  prf»per  protect  ion  and  preservation  of  these 
seals  outside  the  jurisdictional  limits  of  the  respective  Governments. 
That  scheme  i)rovides  that  no  citizen  or  subject  of  either  country  should 


218 


kill,  Ciipturo,  i)r  imrsuc  tln'so  (iir  sciils  aiiywiicn'!  in  tlu^  watorM  of 
lU'riiij^  S(>a  or  of  tiiu  North  riicillc  ()«M>aii,  oiitsi<l«'  (Im<  jiii-isdirtioiial 
lliiiitH  of  tlu>  r«>sp«><'tiv(^  ;;ovi'niiiu'tits,  iioitli  of  llio  .'t.'t  '  of  iiordi  lati- 
tiidc  (soiiMi  of  wliicli  tliis  li<>i'4l  liavc  never  been  known  to  pi  in  itH 
uiij^rations)  and  east  of  tlie  ISO  '  of  |onj;itu«le  from  (In-enwieii.  It  also 
provides  that  ollendin;;'  vesselx  may  l>e  seized  by  tho  naval  (»r  duly- 
eommissioned  ollieers  of 'either  (io\ernment,  and  handed  over,  as  soon 
as  luaetieaido,  t<»  the  antliorities  of  the  nation  to  which  they  ruspuc- 
tively  belonj;*  to  be  dealt  with  by  that  nation — the  witness«'s  and  proof 
necessary  to  estaldish  tln^  otfense  or  to  dispiove  the  same  being  also 
sent  with  the  vessel  seized.  It  farther  provides  that  every  person 
gnilty  of  violating'  these  re;,'ulations  slioiild,  for  each  otfense,  be  lined 
not  less  than  !?-•()()  nor  more  than  !?I,<)(H»,  or  imprisoned  not  more  than 
six  months,  or  both;  sneh  vessels,  their  tackh',  apjiarel,  furniture,  and 
«',ar};'o  to  be  lbrfeit«'<l  and  condennied. 

Only  rej?nlations  of  this  character,  which  prohibit  pelajjie  soalinji 
altogether,  in  all  the  waters  travt'rsed  by  tlH'S(^  seals,  will,  in  my 
judgment,  niake  the  jireservation  of  this  race  of  animals  ab,soliitdy 
certain.  Of  course,  a.  closed  season,  covering  all  of  sudi  waters  and  all 
the  months  of  the  year  when  the  weatiier  admits  of  pelagic  sealing, 
will  give,  i)ra(!tically,  the  same  security  as  regulations  of  a  prohibitory 
character  covering  the  whole  year. 

(Mr.  Justice.  Ihiiliiii  liero  ciitonul  upon  an  oxnniinntiim  of  tho  evidonce  in  detiul  for 
the  ptirpiiso  oI'hIiciwmi;^  tiiat  ho  had  not  oviirstatiid  tho  effci'.t  of  pclaj^ic  Hcalin;;  npuu 
tlie  I'l'ibilol'  herd  ol'seal^.  liu  read,  at  lengtli,  iVoni  thu  depositioUN,  roports,  tnbloH 
ol'  lijjnre.i,  etc.,  introdu('<!<l  by  thi>  I'csjuM-tivo  (iovt'riinicnts,  to  show  tho  diMastrous 
results  of  pelagic  Mealing.  It  is  uuiiccessary  to  uucuiubor  this  opiuiou  with  the 
iletails  of  the  ovideueo  to  whiidi  ho  referred. 

When  tluj  8ubj(^ct  of  Regulations  was  under  eonsidtM'atiou  in  tho  Conferonee,  Mr. 
.lustieo  Harlan  olfered  tho  followiii^j  resolution,  as  embodying  the  views  of  Senator 
Morgan  iind  himself  on  the  (juestioM    if  tho  eoniiieteney  of  the  Tril>unal: 

'^ItvMolvcd,  That  the  juirpose  of  ^  ielo  VII  of  the  Treaty  is  to  secure  in  any  nud 
all  events,  the  proper  protection  ai  preservation  of  the  herd  of  seals  freiiuenting 
tho  Pribilof  Islamls;  and  in  the.  JVj  ing  of  l\'egulatn)ns,  uiuler  the  Treaty,  no  ex- 
tent of  jielagic  sealing  should  bo  all  *ed  which  will  seriously  endanger  tho  aecoiii- 
plishuuMit  of  thateml." 

He  suliset^ueutly  presented,  with  the  conenrrence  of  Senator  Morgan,  the  following 
motion: 

"This  Tribunal  has  power,  and  it  is  its  duty,  under  tho  Treaty,  to  prescribe  such 
concurrent  Regulations,  covering  the  y.-aters,  outside  the  jurisdictional  limits  of  the 
two  countries,  of  both  Bering  Sea  and  rhe  North  I'aeilic  Ocean,  traversed  by  tlu!  fur 
seals  in,  or  habitually  resorting  to,  Hering  Sea,  as  may  be  found  necessary  for  the 
proper  protection  and  prcsorvutioii  of  such  seals,  oven  if  such  Rei;nlatiou8,  when 


itcrt*  of 
ictioiiiil 
th  lati- 
I)  in  itH 

It  also 
«■  duly- 
iis  soon 

1'o.spec- 
1(1  proof 
iiifj  also 

l»erson 
he  lined 
ore  than 
uie,  and 

1  Hcalinji! 
1,  in  Hiy 
ibsoUitcly 
s  and  all 
sealing, 
)hibitoiy 

detail  for 
liiifj  upon 
its,  tables 
li»!iHtrou8 
with  the 

•cncc,  Mr. 
of  Senator 

»  any  and 
'e(iiieuting 
,t,y,  no  ex- 
,be  accoiu- 

following 

cribo  such 
nits  Dtthe 
by  the  fur 
Illy  for  tbe 
i()U8,  when 


219 

Niini'tloni'il  by  tbo  li'^islatiiin  of  tbe  two  (iovernineiitH,  Nlioubl,  by  roiiNon  of  tli«ir 
rxpii'Ms  |ii'iiviKioiiN,  III-  liy  tbfir  |)i':irlii'iil  o|M-i'iUii)ii,  rt'HnIt  in  ihtvimiI  in^  \\in  linnting 
anil  tiiKin);  of  IhcNf  seiilN  iliirjnu;  llir  st'iiNons  when  iho  toriililion  of  naiil  walt'i'H 
Htlniits  of  fur  Hi'als  l<i<iii:;  taKi'ii  liy  |M'la;{i('  Kcalui'M.") 

The  scheme  iMoposed  hy  Miyselfinay  he  ohi<>eted  to  upon  thoi  {ground 
tliat  Mu^  n'ouhilions  wliieli  it  enilioilies  are  sell'execuliii;;,  whereas  it  is 
ar;>u<Ml  tills  'rrlhiinal  has  only  the  power  to  rvcoinnund  the  ado|)tion  of 
re^rulations,  leaviiij;;  it  to  the  twodoverniiienis  toeiiloree  tlieni  hy  le<;is- 
latuui.  1  do  not  assent  to  this  vu^w  of  the  eonipefeney  ol' thisTrihunal. 
The  two  (iovernnients  eonteniplated,  ami  we.  aie  so  Inlorniud  hy  tho 
Treaty,  that  the,  result  of  our  proeeedin;;s  slnMihl  h(^  eonsidercd  "as  a 
full,  perfeet,  and  linal  settlement  of  all  tiiu  ([Uestions  referred  to  the 
Arhitrators."  (Aitiele  \  I  V.)  Our  linal  decision  or  award,  when  made, 
will  hec(»me,  in  lej;al  ell'ecl,  a  part  of  the  Treaty,  as  much  so  as  if  it  was 
emlxxlied  in  it.  Ihit  tiu'/Preaty,  when  thus  perfected,  will  not  he,  a  full, 
perfect,  and  llinil  settlement  of  thc^  eontroversy,  if  the  <lecision  or  award 
is  so  framed  as  to  amount  (o  nothin;::  pra(;tically  until  the  two  nations 
shall  ha\'(^  had  further  nejji;otiations  and  agreed  u[>on  siu'h  additional 
concurrent  Ie;;isIation  as  will  he  recpiired  in  (U'der  that  theawaid  shall 
become  operati\  i'  for  the  pioper  i>rote<'-ti<tn  and  i)res(uvalioii  of  thisraeu. 
I  iind  nolhinjj;  in  the  Treaty  lonkin<ito  such  a  condition  of  thiiij;s  as  tho 
result  of  (lurproeeedinjis.  Under  the  ('onstitution  ofthe  IMiited  States, 
a  treaty,  mad(^  pursuant  to  that  instrunuMit,  and  duly  ratilied,  hecomes 
"the  supreme  law  of  the  land,"  without  the  aid  of  le;;islation,  except 
that  lej'islation  will  he  recpiirt'd  where  the  treaty  provides  for  the  pay- 
ment of  iin)ney.  This  exception  arises  from  the  provision  in  that  (.'on- 
stitution that  "no  money  shall  he  drawn  from  the  Treasury  hut  in  eou- 
se(pience  of  apjuopriations  made  by  law."  Of  course,  if,  under  the 
British  Constitution,  re,ufulations  established  by  the  Tribunal,  i)r()vidin<;- 
for  the  sei/aire  of  vessels  and  the  punishment  of  jtersons  olfending 
aj^ainst  such  rej^u  hit  ions,  can  not  be  made  a|)p1icable  to  British  vessels 
and  i'ritish  subjects,  without  legislative  san«',tion,  v  e  must  rely  upon 
the  good  faith  of  the  two  Governments  interested  to  give  effect  to  (uir 
decision  by  appropriate  enactments.  But  I  <lo  not  uiHlerstan<l  the 
British  Constitution  to  re<piire  legislative  approval  of  the  regulations 
prescribed  by  the  Tribunal  before  they  can  bec(une  operative  against 
British  vessels  and  British  subje(!ts.  We  have  been  invested  by  the 
two  (lovernments  with  full  power,  as  Senator  Morgan  has  well  said,  to 
write  into  the  Treaty  of  February  21),  181)2,  such  regulations  as  we  find 
ne(!essary  and  such  as  will  be  immediately  otFectual  for  the  proper  pro- 
tection aud  i)reservatiou  of  these  fur  seals  when  they  are  outside  the 


^11 


220 


m 


jurisdictional  limits  of  the  respective  nations.  Tlie  enjjiifjenient  of  the 
two  Goveriiineuts  with  respect  to  reguhitious  was  tliiit  they  wouhl  coop- 
erate in  seeiiring  the  adhesion  of  other  powers  ''to  sucli  Keyuhitions" 
rt,s'  this  Tribumd  shonhl  in'escribe.  This  conhl  liave  referred  only  to 
regulations  wliich  by  their  own  force,  without  further  action  of  the  two 
Governments,  would  properly  protect  and  preserve  this  race  of  ani- 
mals. The  adhesion  of  other  nations  to  IJegulations  which  did  not,  in 
themselves,  se(.'ure  the  protection  and  preservation  of  this  race,  would 
be  of  no  value. 

One  of  the  schemes  before  ns  is  that  proposed  by  Sir  John  Thompson, 
r  mean  no  disrespect  to  its  distinguished  author,  whose  good  faith  is  not 
(luestioncd,  when  I  say  that,  in  view  of  all  the  evidence,  that  s<dieme 
maybe  fairly  entitled  ''A  plan  for  the  certain  and  speedy  extermina- 
tion of  the  Pribilof  herd  of  i'ur  seals."  Under  regulations  such  as  are 
embodied  in  that  plan  all  the  seals,  including  gravid  females,  w<mld  be 
exposed  to  attack  by  pelagic  sealers  during  the  months  of  May  and 
June  in  the  Xorth  Pacilic  Ocean;  and  during  July,  August,  and  Sep- 
tember in  Jiering  Sea,  outside  of  a  zone  of  thirty  miles  around  the 
rribih)f  Islands,  musing  female  seals  could  be  slaughtered  in  vast 
nundiers.  The  use  of  rifles  and  nets  are  [)rohibited  by  this  schenu', 
while  it  saves  to  pelagic  hunters  the  use  of  the  destructive  shotgun 
now  in  general  use  by  them.  A  prohibition  of  ritles  is  of  no  value 
whatever  if  the  shotgun  is  alhtwed.  Xor  is  it  of  the  slightest  conse- 
<iuence  that  this  scheme  prohibits  the  killing  of  seals  in  Berlny  Sea 
(east  of  the  line  of  demarcation  adopted  in  the  Treaty  of  18(57  between 
h'ussia  and  the  United  States)  he/ore  the  1st  of  -July  and  after  October 
1  in  each  year;  for,  the  seals  can  not  be  found  in  Bering  Sea  in  any 
numbers  worth  mentioning  after  October  1  ami  before  July  1.  I 
object  to  this  scheme  upon  the  further  ground  that  it  allows  either 
(rovernnuMit  upon  notice  to  put  an  end  to  our  regulations  after  a  named 
time.  Whatever  this  Tribunal  may  do  in  this  matter,  let  that  which 
is  done  be  final  and  permanent,  subjecit  only  to  such  modifications 
or  change  of  policy  as  the  two  governments,  in  their  wisdom,  may 
nmtually  agree  to  make.  I  see  no  objection  to  a  reexamination  from 
time  to  time,  by  the  tw^  governments,  of  the  subject  of  regulations  but 
there  are  many  reasons  against  a  reservation  to  each  government  of 
the  right  to  set  aside  the  regulations  after  the  lapse  of  any  given  time. 
This  whole  subject  has  been  a  source  of  disturbanite  between  these 
nations  for  so  long  a  period  that  the  controversy  should  be  now  settled 


221 


einent  of  the 
woul<l  (;o(»p- 
ieguliitioiis" 
■rred  only  to 
)ii  of  the  two 
vinw.  of  ani- 
li  did  not,  in 
i  race,  would 


n  Thompson, 
td  fiiith  is  not 
thiit  scheme 
y  extermina- 
>i  such  as  are 
les,  would  be 
of  May  and 
list,  and  Sep- 
5  around  the 
ered  in  vast 
this  scheme, 
Itlve  shotgun 
of  no  value 
fhtest  eonse- 
|i  Ik'Hny  Sea 
807  between 
[f'ter  October 
Sea  in  any 
3  July  1.    I 
Hows  either 
ter  a  named 
that  which 
Ijodilications 
|isdoin,  may 
lation  from 
Illations  but 
eminent  of 
given  time. 
,ween  these 
now  settled 


and  forever  put  aside.  That  is  what  these  countries  hid  in  view  whoti 
the  Treaty  of  1892  "^as  concluded.  If  we  put  it  in  the  power  of  each 
Government,  after  a  named  date,  to  set  aside  our  regulations,  the  de- 
cision we  make  will  not  be  a  "full,  perfect,  and  final  settlement"  of 
these  questions.  The  wisdom  and  patriotism  of  the  two  great  nations 
here  represented  is  a  sullicient  guarantee  that  all  will  be  done,  by 
mutual  agreement,  which  further  investigation  and  developments 
show  to  be  necessary. 

Without  further  elaboration,  I  must  say  that  the  scheme  of  Sir  John 
Thompson  can  not  bo  approved  if  we  accept,  as  Justified  by  the  evi- 
dence, what  Sir  Richard  Webster  said  in  his  very  able  argument,  when 
he  declared  that  "no  gravid  female  ought  to  be  killed,  so  far  as  it  can 
be  reasonably  avoided,"  and  that  "  no  nursing  female  upon  whose  life 
that  of  the  pup  depends  (mght  to  be  slaughtered  or  injured  in  any 
way."  The  same  eminent  counsel  also  frankly  observed:  "It  seems 
to  me  that  upon  the  simple  principle  that  has  governed  and  controlled 
the  game  laws  of  all  civilized  people,  the  killing  of  a  female  which  is 
about  to  bring  forth  its  young,  or  upon  whose  life  the  lives  of  the  young 
are  dependent,  is  a  matter  whicii  no  Tribunal  would  indorse  by  recom- 
mendation, and  that,  therefore,  the  contrary  of  that  would  recommend 
itself  to  the  mind  of  this  Tribuiuil." 

(After  tlio  general  (liscuasion  iu  conforonno  upon  tlio  sii1>ject  of  roijiilatiotiB  was 
coucliidfd — tho  Arbitrators  niiined  by  the  Govoruments  of  Or^iit  Ikitaiu  ami  tlie 
United  States  having  alono  pavtiei;)ated  in  tliat  <lisciissi()n — tlie  matter  was  ta Icon 
nndcr  advisement  by  the  Arb'trators  from  I''rance,  Italy,  and  Xorway,  and  rlie.y 
snbmittod  a  sclienie  of  regulations  for  the  consideration  of  the  'rril)nnal.  A  copy  of 
that  scdiemii  is  appended  to  this  opinion,  and  it  became  tiio  snl)joct  of  discussion 
among  the  Arbitrators.) 

I  confess  some  disapjiointment  in  finding  that  the  majority  (»f  the 
Tribunal  do  not  favor  regulations  which,  in  terms  or  by  their  necessary 
operation,  will  put  an  eiul  to  all  pelagic  s(>aling  in  the  waters  traversed 
by  these  fur  seals.  Ft  is  vevy  jnuch  to  be  feared  that  the  theory  of 
compromise  has  had  moie  weight  than,  as  T  submit,  it  ought  to  have 
ui)on  the  determination  of  the  pending  (luestion.  A  compronn'se, 
between  confiicting  views,  which  leaves  th<^  preservation  of  this  race 
in  douht^  as  far  as  their  preservation  depends  upon  regulations,  uught 
not  bo  favored.  It  seems  to  me  that  the  su[)reme  object  of  regulations, 
the  protection  ami  preservation  of  this  race  of  animals,  could  not  be 
certainly  accomplished  except  by  regulations  of  the  kind  proposed  by 
me,  with  the  concurrence  of  Semitor  Morgan. 


'I 


liJ 


•ii' 


f 


222 

Bnt,  as  onr  views  are  not  accepted  by  the  Trihnnal,  the  question  is 
presented  wliether  the  report  made  by  Baron  de  Courcel,  Marquis  Vis- 
conti-Venosta  and  His  Excellency  M.  Gram,  shall  receive  our  support. 
Upon  mature  reflection,  we  hsive  concluded  to  vote  in  favor  of  the  scheme 
of  regulations  recommended  by  those  Arbitrators,  although  it  contains 
some  provisions  not  acceptable  to  us.  It  establishes  a  zone  of  GO  miles 
around  the  Pribilof  Islands,  inclusive  of  territorial  waters,  within 
which  tlie  taking  of  seals  at  any  time  by  the  citizens  or  subjects  of 
cither  country  is  to  be  i)rohibited.  1 1  establishes  a  clos<'d  season,  between 
April  15  iiiid  July  31,  both  inclusive,  for  all  the  waters,  both  of  the 
Nortli  Pacidc  Ocean  and  of  Bering  Sea,  north  of  the  thirty-fifth  degree 
of  north  latitude.  It  allows  only  sailing  vessels  to  take  part  in  fur 
seal  fishing  operations.  It  forbids  the  use  of  nets,  ilrearms,  aiul 
ex]>losive8  in  fur  seal  lisliing,  with  the  ex(;eption  of  the  shotgun  in 
the  North  Pacific  Ocean  prior  to  April  15.  While  it  permits  a  new 
examination,  by  the  two  (xovernments,  every  five  years,  of  the  proposed 
regulations,  to  ascertain  whether  there  is  any  occasion  to  modify  them, 
tiie  regulations  now  i)ioposed,  if  adopted,  are  to  remain  in  I'orce  until 
they  shall  have  been,  in  wiioleor  in  part,  abolished  or  modified  by  "com- 
mon agreement"  between  the  two  nations.  The  features  of  this  scheme 
that  are  chiefiy  objectionable  are  these:  (1)  It  permits  pelagic  seal- 
ing with  shotguns,  in  the  Ncu'th  Pacific  0(;ean,  prior  to  April  15;  (2) 
it  allows  pelagic  sealing,  after  July  31,  in  Bering  8(ni,  witli  harpoons 
and  spears,  Notwithstanding  these  delects  in  the  scheme,  there  is  a 
hope,  thougli  not  a  certainty,  that  this  race  may  under  the  regulations 
so  proposed,  escape  destruction  at  the  hands  of  pelagic  sealers.  For 
that  reason,  and  in  the  interest  cf  peace  between  the  two  nations,  Sena- 
tor Morgan  and  myself  have  determined  to  give  our  votes  in  supjwrtof 
this  schenu',  as  the  best  solution  likely  to  be  obtained  froj  i  the  Tribunal 
of  the  question  of  legulations. 


(Protocol  LIV  A>  ill  show  the  votes  in  Conforcnco  \ipon  the  Beveral  resolntions,  mo- 
tions, and  plans  prosnntod  by  Arltitratoi-H,  velatinj^  to  rej^ulations,  and  also  votes 
upon  different  amendments  made  in  tlio  scluMiic  of  KcMiiliitions  proposed  by  Baron 
do  Cuurcol,  Marquia  Viscouti-Veuosta  uiid  Uis  Excelleucy  M.  Gram.) 


223 


BKOULATIOXS  PKOPOSED  BY  MB.  JUSTICE  IIABIiAX,  COXCCBRED  IX  BT  SEXATOB  MORGAN. 

Articlk  1.  No  citizen  or  Hiibjoct  of  tho  IJiiitod  SratesorGreivt  ISritain  shall  in  any 
manner  kill,  capture,  or  pursue  anywhere  upon  the  seas,  within  the  limits  and 
boundaries  next  hereinafter  prescribed  for  the  operation  of  this  regulation,  any  of 
the  animals  commonly  called  fur  seals. 

Aht.  2.  Tiio  foregoing  regulation  shall  apply  to  and  extend  over  all  those  waters, 
outside  the  jurisdictionjvl  limits  of  the  above-mentioned  nations,  of  the  North  Pa- 
cific Ocean  and  Bering  Sea  which  are  North  of  the  thirtj'-fifth  parallel  of  north  lati- 
tude and  east  of  the  one  hundred  and  eightieth  ineridiati  of  longitude  from  Green- 
wich. 

Aht.  ■'{.  I'^very  vessel  or  person  olfending  against  those  regulations  niny  he  seized 
and  detained  by  the  naval  or  duly  eomuiissioned  ollieers  of  either  the  United  .States 
orGreat  Britain,  but  they  shall  bo  handed  ovtjr.as  soon  as  practicable  to  the  authori- 
ties of  the  nation  to  whicdi  they  respectively  belong,  who  alone  sliall  iiave  .juris<lic- 
tion  to  try  tho  olfeuse  and  impose  penalties  for  the  same.  The  witnesses  and  proof 
necessary  to  establish  the  offense  or  to  disprove  the  same  found  on  the  vessel  shall 
also  be  sent  with  them. 

Art.  l.  Every  person  guilty  of  violating  these  regulations  shall,  for  each  offense, 
be  fined  not  less  than  $200  nor  more  than  $1,000,  or  imprisoned  not  morc^  than  six 
niontlis,  or  both;  and  vessels,  their  tackle,  ai)parel,  furniture,  and  cargo,  found  en- 
gaged in  violating  these  regulations  shall  bo  forfeited  and  condemned. 


ions,  1110- 
Iso  votes 
jy  Baron 


REOULATIO>;S  PROPOSED  BY  SIR  JOHN  TIIOMPSOX. 

Articlk  1.  No  sealing  except  by  licenses  which  are  to  be  issued  at  two  United 
States  and  two  Canadian  ports  on  the  Paeitic  coast. 

These  licenses  to  bo  gr.'intcd  only  to  sailing  vessels,  and  not  to  be  granted  earlier 
than  a  date  that  would  correspond  with  tlie  1st  of  May  in  the  latitude  of  Victoria, 
British  Columbia. 

Art.  2.  Each  vessel  carrying  anch  license  to  use  a  distinctive  flag  and  to  keep  a 
record  in  the  ofBcial  log  of  the  number  of  seals  killed  or  wounded,  and  the  locality 
in  which  the  hunting  takes  place,  from  day  to  day;  all  such  entries  to  be  tiled  with 
the  collectors  of  customs  on  the  return  of  tiio  vessels. 

Art.  3.  The  use  of  rillos  and  nets  in  seal  iishiug  is  prohibited. 

Art.  4.  The  killing  of  seals  to  be  prohibited  within  a  zone  of  30  miles  from  the 
Pribylov  Tsl.anda,  and  within  a  zone  of  10  miles  around  tho  Aleutian  Islands. 

Art.  0.  The  killing  of  seals  to  b(^  jiroliil)itc(l  in  Bering  Sea  (east  of  the  line  of 
demarcation  adopted  in  the  treaty  of  cession  from  Russia  to  tho  United  States)  before 
the  1st  of  .July  and  after  the  1st  of  October  in  each  year. 

Art.  6.  Tho  forgoing  regulations  shall  be  brought  into  force  from  and  after  a  d.iy 
to  be  agreed  upon  by  Great  Britian  and  the  United  States,  and  shall  continue  in 
operation  for  ten  years  from  the  above  day;  and,  unless  Great  Britain  or  the  United 
States  shall,  twelve  months  before  the  exjiiration  of  the  said  period  of  ten  years,  gi  vo 
notice  of  intention  to  terminate  their  operation,  shall  continue  in  force  one  year 
longer,  and  so  on  from  year  to  year. 


224 


iKm 


BEOUIiiTIONS   PKOPOSGD  BT  BARON  DE  COrROEIi,    MARQUIS  TISCOKTI-YGNOSTA,  AND 

HIS  KXCKMiKXCY  H.  UKAM. 

AnTiCLK  I.  The  Govoriimonts  of  the  United  States  and  of  Gtreat  Britain  shall  for- 
bid thoir  fitinons  and  .subjects  resi)eclivoly  to  kill,  capture,  or  pursue  at  any  time 
and  in  .any  manner  whatever,  the  animals  commonly  called  fur  seals,  within  a  zone 
of  60  miles  around  the  Pribylov  Islamls,  inclusive  of  the  territoral  waters. 

The  miles  mentioned  in  the  preceding  paragraph  are  geographical  miles,  of  60  to  a 
degree  of  latitude. 

Art.  2.  The  two  Governments  shall  forbid  their  citizens  and  snbjects  respectively 
to  kill,  capture,  or  pursue,  in  any  manner  whatever,  during  the  season  extending 
each  year  from  tlie  15th  of  Ai)ril  to  the  31st  of  July,  both  inclusive,  the  fur  seals  on 
the  high  sea  in  the  part  of  the  Pacific  Ocean,  inclusive  of  the  Bering  Sea,  which  is 
situated  to  the  north  of  the  thirty-fifth  degree  of  north  latitude. 

Art.  3.  During  the  period  of  the  time  and  in  the  waters  in  which  the  fur  seal  fish- 
ing is  allowed  only  sailing  vessels  shall  be  permitted  to  carry  on  or  take  part  in  fur- 
seal  fishing  operations.  They  will,  however,  be  at  liberty  to  avail  themselves  of 
the  use  of  canoes  or  small  boats,  propelled  wholly  by  oars. 

'  Art,  4,  The  sailing  vessels  authorized  to  fish  for  fur  seals  mnst  be  provided  with 
a  special  license  issued  for  that  purpose  by  its  Government  and  shall  be  reiiuired  to 
carry  a  distinguishing  flag  to  be  prescribed  by  its  Government. 

Art,  5,  The  masters  of  the  vessels  engaged  in  fur  seal  fishing  shall  enter  accu- 
rately in  their  official  log  book  the  date  and  place  of  each  fur  seal  lishing  operation, 
and  also  the  number  and  sex  of  the  seals  captured,  upon  each  day.  These  entries 
shall  be  communicated  by  each  of  the  two  Governments  to  the  other  at  the  end  of 
each  fishing  season. 

Art,  ii.  The  use  of  nets,  firearms,  and  explosives  shall  be  forbidden  in  the  fur  seal 
fishing.  Tills  restriction  shall  not  ajjply  to  shotguns  when  such  lishing  takes  i)laco 
outside  of  Bering  Sea, 

Art,  7,  The  two  governments  shall  take  measures  to  control  the  fitness  of  the  men 
authorized  to  engage  in  fur  seal  iisliing;  these  men  siiall  have  been  proved  fit  to 
handle  with  sufficient  skill  the  weapons  by  means  of  which  this  fishing  may  be  car- 
ried on. 

Akp.  8.  The  regulations  contained  in  the  preceding  articles  shall  not  apply  to 
Indians  dwelling  on  the  coasts  of  the  territory  of  the  United  States  or  of  (Jreat 
Britain,  and  carrying  on  in  their  canoes,  at  a  small  distance  from  the  coasts  where 
they  dwell,  fur  seal  fishing. 

Art,  9.  The  concurrent  regulations  hereby  determined  with  a  view  to  the  protec- 
tion and  preservation  of  the  fur  seals  shall  remain  in  force  until  they  have  been,  in 
whole  or  in  part,  abolished  or  modified  by  common  agreement  between  the  govern- 
ments of  the  United  States  and  of  Great  Britain. 

The  said  concurrent  regulations  shall  be  submitted  every  five  years  to  a  new 
examination,  so  as  to  enable  both  interested  governments  to  consider  whether,  in 
the  light  of  past  expeiiouce,  there  is  occasion  for  any  modification  thereof. 


■VKNOSTA,  AND 

itiiin  shfill  for- 
10  at  any  tiino 
within  a  zone 
iters, 
liles,  of  60  to  a 

ts  respectively 
ison  extending 
ho  fnr  seals  on 
;  Sea,  which  is 

e  far  seal  fish- 

ke  part  in  fur- 

themselves  of 

provided  with 
he  reciuired  to 

ill  enter  accu- 

ing  operation, 

These  entries 

at  the  end  of 

in  the  fnr  seal 
\g  takes  i)laco 

[ss  of  the  men 
[•roved  tit  to 

may  bo  car- 
hot  apjily  to 

or  of  (Jreat 
loasts  whore 

I  the  protee- 
^vo  boon,  in 
the  govern- 
to  a  new 
chothor,  in 


225 


FINAIi  PKCISION. 

Now  wc,  the  said  Arbitrators,  having  impartially  and  carefnlly  examined  the  said 
questions,  do  in  like  manner  by  this  our  award  decide  and  determine  the  said  ques- 
tions in  manner  following,  that  is  to  say,  we  decide  and  determine  as  to  the  live 
points  mentioned  in  Article  VI,  as  to  which  our  award  is  to  embrace  a  distinct 
decision  upon  each  of  them : 

As  to  the  first  of  the  said  five  points,  we,  the  said  Baron  do  Conrcel,  Mr.  Justice 
Harlan,  Lord  Hannen,  Sir  John  Tliompson,  Marquio  Visconti  Vonosta,  and  Mr.  Gregcrs 
Gram,  being  the  majority  of  the  said  Arbitrators,  do  decide  and  determine  as  follows : 

By  the  Ukase  of  1821,  Russia  claimed  jurisdiction  in  the  sea  now  known  as  the 
Bering  Sea,  to  tlio  extent  of  100  Italian  miles  from  tUe  coasts  and  islands  belonging 
to  her;  but,  in  the  course  of  the  negotiations  which  led  to  the  conclusion  of  the 
treaties  of  1824  with  the  United  States,  and  of  1825  with  Great  Britain,  Russia 
admitted  that  her  jurisdiction  in  the  said  sea  should  be  restricted  to  the  reach  of 
cannon-shot  from  shore,  and  it  appears  that,  from  that  time  up  to  the  time  of  the 
cession  of  Alaska  to  the  United  States,  Russia  never  asserted  in  fiict  or  exercised 
any  exclnsivo  jurisdiction  iu  Bering  Sea  or  any  exclusive  rights  in  tlie  seal  fish- 
ericb  therein  beyond  the  ordinary  limits  of  territorial  waters. 

As  to  the  second  of  the  said  five  points,  wo,  the  said  Baron  do  Conrcel,  Mr.  .Tustico 
Harlan,  Lord  llaunen,  Sir  John  Tliompsim,  Marquis  Visconti  Venosta,  and  Mr. 
Grcgers  Gram,  being  a  majority  of  the  said  Arbitrators,  decide  and  determine  that 
Great  Britain  did  not  recognize  or  concede  any  claim,  upon  the  part  of  Russia,  to 
exclusive  jurisdiction  as  to  the  seal  fisheries  in  Bering  Sea,  outside  of  ordinary 
territorial   waters. 

As  to  tho  third  of  the  said  five  points,  as  to  so  much  thereof  as  requires  us  to 
decide  whether  tho  body  of  water  known  as  Bering  Sea  was  included  in  tlie  phrase 
"Pacific  Ocean,"  us  used  iu  tho  treaty  of  182.5  between  Great  Britain  and  Russia, 
we,  tho  said  Arbitrators,  do  unanimously  decide  and  deteriniue  thiit  the  body  of 
water  now  known  as  the  Bering  Sea  wa.s  included  iu  (ho  phrase  "Pacific  Ocean," 
as  used  iu  the  said  treaty. 

And  as  to  so  much  of  tlie  said  third  point  as  requires  us  to  decide  what  rights,  if 
any,  in  the  Bering  Sea  wore  held  and  exclusively  exercised  by  Russia  after  tho  said 
Treaty  of  1825,  we,  the  said  Baron  do  Courcel,  Mr.  Justice  Harlan,  Lord  Hannen, 
Sir  John  Thompson,  Maniuis  Visconti  Venosta  and  Mr.  Gregers  Gram,  being  a  ma- 
jority of  the  said  Arbitrators,  do  decide  and  determine  that  no  exclusive  rights  as  to 
tho  seal  fisheries  therein  were  held  or  exercised  by  Russia  outside  of  ordinary  terri- 
torial waters  after  the  Treaty  of  1825. 

As  to  the  forth  of  tho  said  live  jioiuts,  wo,  the  said  Arbitrators,  do  nuauimously 
decide  and  determine  that  all  the  rights  of  Russia  as  to  jurisdiction  and  as  to  the 
seal  fisheries  iu  Bering  Sea,  east  of  the  water  boundary,  in  tho  Treaty  between  the 
United  States  and  Russia  of  tho  30th  of  March,  18G7,  did  i>a83  unimpaired  to  the 
United  States  under  the  said  Treaty. 

As  to  tho  fifth  of  tho  said  five  points,  we,  the  said  Baron  do  Conrcel,  Lord  Ilanuen, 
Sir  John  Thompson,  Marquis  Visconti  Venosta,  and  Mr.  Gregers  Gram,  being  a  ma- 
jority of  the  said  Arbitrators,  do  decide  and  determine  that  tlio  UnitcdStatciih.no  not 
11492 15 


j    I 


226 

any  right  of  protection  or  property  in  tlie  fur  seals  frnqnenting  the  islands  of  the 
United  States  in  Bering  Sea,  when  such  seals  are  found  outside  the  ordinary  three- 
mile  limit. 

REOI'LATIONS  PROPOSKD  BT  BARON  DE  COrRCEI,,  HARQOIS  VISCONTI  VENOSTA,  AND  HIS 
EXCELLENCY  H.  URAM,  AS  AMENDED  AND  ADUPTED  BT  A  MAJORITV  OF  THE  TRIBUNAL. 

AUTICLE  1. 

The  Governniont  of  the  United  St.ites  and  of  Great  Britain  shall  forbid  their  cit- 
izens and  subjects  respectively  to  Icill,  capture,  or  pursue,  at  any  tiuio  and  in  any 
manner  whatever,  the  animals  commonly  called  fnr  seals,  witliin  a  zone  of  60  miles 
around  the  Pribilov  Islands,  inclusive  of  tlio  territorial  waters. 

Tlie  miles  mentioned  in  the  preceding  paragraph  are  geographical  miles,  of  60  to 
a  degree  of  latitude. 

AUTICLE  2. 

The  two  Oovernments  shall  forbid  their  citizens  and  subjects  respectively  to  kill, 
capture,  or  pursue,  in  any  manner  whatever,  during  the  season  extending,  each 
year,  from  the  1st  of  May  to  the  3lst  of  July,  both  inclusive,  the  fur  seals  on  the 
high  sea,  in  the  part  of  the  Pacific  Ocean,  inclusive  of  the  Bering  Sea,  wuich  is 
sitiuited  to  the  north  of  the  3.")th  degree  of  north  latitude,  and  eastward  of  the 
180th  degree  of  longitude  from  Greenwich  till  it  strikes  the  water  boundary  de- 
scribed in  Article  I  of  the  Treaty  of  1867  between  the  United  States  and  liussia,  and 
following  that  lino  up  to  Bering  Straits. 

AiiTici.ic  3. 

During  the  period  of  time  and  in  the  waters  in  which  the  fur  seal  fihiiing  is  allowed, 

only  sailing  vessels  shall  bo  permitted  to  carry  on  or  take  part  in  I'ur  seal  lishing 

operations.    They  will  however  bo  at  liberty  to  avail  themselves  of  the  use  of  such 

canoes  or  undecked  boats,  propelled  by  paddles,  oars,  or  sails,  as  are  in  common  use 

as  fishing  boats. 

AitncLE  4. 

Each  sailing  vessel  authorized  to  fish  for  fur  seals  must  bo  provided  with  a  special 
license  issued  for  that  piirpose  by  its  Government,  and  shall  bo  rccjuirod  to  carry  a 
distinguishing  flag  to  be  iirescribed  by  its  Government. 

AiniCLK  5. 

The  masters  of  the  vessels  engaged  in  fur  seal  fishing  shall  enter  accurately  in 
their  ofticial  log  book  the  date  and  place  of  each  fur  seal  fishing  operation,  and  also 
the  number  and  sex  of  the  seals  captured  upon  each  day.  These  entries  shall  be 
connnunicated  by  each  of  the  two  Governments  to  the  other  at  the  end  of  each  fishing 
season. 

Artici.k  6. 

The  use  of  nets,  firearms,  and  explosives  shall  be  forbidden  in  the  fur  seal  fishing. 
This  restriction  shall  not  apply  to  shotguns  when  such  fishing  takes  place  outside 
of  Bering's  Sea  during  the  season  when  it  may  be  lawfully  carried  on. 


the  islands  of  the 
he  ordinary  three- 


ri  VENOSTA,  AND  HIS 
OK  TlIK  TIUBUXAL. 


linU  forbid  their  cit- 
iny  time  and  in  any 
n  a  zone  of  60  miles 

,hical  miles,  of  60  to 


s  respoctivoly  to  kill, 
ason  extending,  each 
,  the  fnr  seals  on  tho 
Bering  Sea,  wuich  is 
and  eastward  of  the 
a  water  boundary  do- 
States  and  Russia,  and 


seal  fisniug  is  allowed, 

art  in  far  seal  fishing 

•es  of  the  use  of  such 

as  arc  in  common  use 


H^rovidcd  with  a  special 
bo  required  to  carry  a 


lall  enter  accurately  in 

ing  operation,  and  also 

These  entries  shall  be 

1  tho  end  of  each  fishing 


in  the  fur  seal  fishing. 
Ing  takes  place  outside 
tarried  on. 


227 

ARTiri.F,  7. 

The  two  Governments  shall  take  measures  to  control  the  fitness  of  tho  men  author- 
ized to  engage  in  fnr  seal  fishing;  those  men  sliall  liave  been  ]noved  fit  to  liandle 
with  sufficient  skill  the  weapons  by  means  of  wliich  this  fisliing  may  he  carried  on. 

AllTICLE  8. 

The  regulations  contained  in  tho  preceding  articles  shall  not  apply  to  Indians 
dwelling  on  tlie  coasts  of  tlie  territory  of  tlio  United  States  or  of  Great  liritiiin.and 
carrying  on  fur  seal  fishing  in  canoes  or  undecked  boats  not  tranajiorted  by  or  used 
in  connection  with  other  vessels  and  propelled  wliolly  by  paddles,  oars  or  sails,  and 
manned  by  not  more  tlian  five  persons  each  in  tlie  way  liitlicrto  iiracliccd  l>y  the 
Indians,  provided  sucli  Indians  are  not  in  tlio  employment  of  otlier  persons,  and 
provided  that,  wlien  so  liunting  in  canoes  or  nndccl<ed  boats,  tiiey  shall  not 
hunt  fur  seals  outside  of  territorial  waters  under  contract  for  tho  delivery  of  tlie 
skins  to  any  person. 

This  exemption  sliall  not  he  construed  to  affect  the  municipal  law  of  either 
country,  nor  shall  it  extend  to  the  waters  of  I'oriiig  Sea  or  the  waters  of  tlie  Aleu- 
tian Passes. 

Nothing  lierein  contained  is  intended  to  interfere  with  tlio  employment  of  Indiana 
as  hunters  or  otherwise  in  connection  with  fur  sealing  vessels  as  heretofore. 

AUTTCLE  9. 

The  conrnrrent  regulations  hereby  determined  witli  a  view  to  the  protection  and 
preservation  of  the  fur  seals,  shall  remain  in  force  until  tliey  have  been,  in  whole  or 
in  part,  abolished  or  modified  by  common  agreement  between  the  Govornments  of 
the  United  States  and  of  Great  Britain. 

Tlie  said  concurrent  regulations  >')hall  lie  submitted  every  five  years  to  a  new 
examination,  so  as  to  enable  both  interested  Governments  to  consider  wliether,  in 
the  light  of  past  experience,  there  is  occasion  for  any  modification  tlicrcof. 


DECLARATIOXS  MADE  BY  THE  TRIHUXAL  OF   ABBITKATIOX   AND  REFERRED  TO  THE  OOV- 
ERXMEMS  OF  THE  I'MTED  STATES  AND  GREAT  BRITAIN  FOR  THEIR  CONSIDERATION. 

I. 

The  Arbitrators  declare  that  tho  concurrent  regulations,  as  delormined  upon  by 
the  Tribunal  of  Arbitration,  by  virtue  of  Article  VII  of  the  treaty  of  the  2flth  of 
February  1892,  being  applicable  to  the  liigh  sea  only,  slionld,  in  tlieir  opinion,  be 
supplemented  by  otlier  regulations  applicable  witliin  the  limits  of  the  sovereignty 
of  each  of  tho  two  powers  interested  and  to  l)o  settled  by  their  common  agreement. 

n. 

In  view  of  the  critical  condition  to  which  it  appears  certain  that  tho  race  of  fur 
I      seals  is  now  reduced  in  consequence  of  circumstances  not  fully  known,  tlie  Arbi- 
trators think  fit  to  recommend  both  Governments  to  como  to  an  understanding  in 
order  to  prohibit  any  killing  of  fur  seals,  either  on  laud  or  at  sea,  for  a  period  of 


!*1  \\ 


m 


l! 


"'3;i 


■  :  $  ■ 


228 

two  or  tlirco  years,  or  at  Iciist  one  year,  subject  to  sncli  exceptions  as  the  two  Gov- 
ernments might  thinh  proper  to  admit  of. 
Such  a  measure  mi<;ht  be  recurred  to  at  occasional  intervals  if  found  beneficial. 


III. 

The  Arbitrators  declare  moreover  that,  in  their  opinion,  the  carrying  out  of  the 
regulations  deterniiucd  upon  by  the  Tribunal  of  Arbitration,  should  bo  asstircd  by  a 
system  of  stipulations  and  measures  to  be  enacted  by  the  two  powers,  and  that  the 
Tribunal  must,  in  cousei|ueuce,  leave  it  to  the  two  powers  to  decide  upou  the  nieaus 
for  giving  efl'cct  to  the  rcgulatioua  determined  upou  by  it. 


g  out  of  the 
assured  by  a 
and  that  tlie 
lu  the  uieuuH 


JiEIiING  SEA  TRIIiUNAL  OF  AniilTllATION. 


OPINION 

OF 

SENATOR   MOKGAN 


AT  TUK 

.  CONIEIIENCE  IN  I'AlllS 

OP  THE 

BARON   DE  COURCEL 

THE  RIGHT  HONORABLE  LORD  HANNEN 
0/  Great  Jirilain;  ' 

THE    HONORABLE    SIR   JOHN    THOMPSON. 
Jilin,.ter  of  Justice  and  Athunnj-Oencral  of  Can.cla, 

MR.  JUSTICE  HARLAN, 
A  Justice  of  the  Supreme  Court  of  the  United  .States, 

SENATOR  MORGAN, 
A  Senator  of  the  Vnited  ftalcsi 

MARQUIS  EMILIO  VISCONTI  VENOSTA 
For..r  .n.,V.  „,  ,,rei,n  ..airs,  and  S.Jr  l^^X..  .f  It.y, 

And  HIS  EXCELLENCY  GREGERS  GRAM 

Minister  of  State  of  Korway.  ' 


WASHINGTON,  D.C.: 

GOVEUNMENT  PRINTING  OFFIOB. 
1893. 


i  ■ 


'I'lIK  TUIHUNAL  IIAVIXa  UNDER  (^ONSIDKRATION  TIIK  MOTION  Ol'" 
Mil.  .11  STICK  1IA1!I-AN,  SKT  I'OUTII  IN  IMIS  PAPi;i{,  SE.NATOU 
MORGAN  SUIIMITTKI)  'J'llE  1  ()I,L()AVIN(J  STATEMENTS  AND  KE.MAKKS. 

From  the  tiinowlien  th«  controversy,  wliicli  is  tlio  subject  of  this  iirbi- 
tratioii,  assunRMl  the  form  of  treaty  eiij;ii{,'eineiits  between  the  United 
States  and  (heat  Britain,  it  became  a  matter  that  invoked  the  sovereijin 
powers  of  both  (Jovennnents,  and  the  ri};hts  of  the  United  8ta(es  and 
of  the  subjects  of  (Jreat  ]>ritain  were  merged  in  those  of  each  sovereijun, 
as  they  are  lixed  by  that  treaty. 

Each  (Jovernment,  in  its  own 'way,  and  according  to  its  own  will, 
without  legal  resi)onsibility  to  its  citizens  or  subjects,  undcrtdok  to 
control  the  entire  subject  in  its  ca[)acity  as  a  soveieign.  These  powers 
were  exerted  in  their  broadest  form  in  the  vkxIkn  rii-eiKU  ol"  1S91, 
which  was  fully  executed,  and  in  that  of  1SI>2,  which  is  lnad^^  a  part  of 
the  Treaty  of  February  29,  1802.  In  the  creation  of  this  Tribunal  of 
Arbitration,  and  in  the  definition  aiul  limitation  of  its  jiowers,  this 
arrangement  was  c(mtinued  in  force.  It  results  from  this  attitude  of 
the  two  Governments  toward  the  fur-seals  referred  to  in  the  treaty 
that  any  dealing  with  them  on  the  high  seas  by  any  peison  lawfully 
bearing  the  flag  of  (uther  (Jovernment  is  an  act  for  which  that  (Jovern- 
ment must  be  responsible  to  the  other  Governnuiut  if  any  question 
of  res[)onsibility  arises. 

It  was  (juite  as  competent  for  the  two  Clovernments  to  i)roliibit  the 
taking  of  fur-seals  as  far  to  the  south  as  the  couator  as  it  was  to  ])ro- 
hibit  it  in  IJerlng  Sea,  so  far  as  their  citizens  or  subjects  are  concerned ; 
and  it  was  as  competent  lor  them  to  mak(i  the  prohibition  pcrj)etual 
as  it  was  to  confine  it  to  two  or  more  fishing  seasons.  The  two  CJov- 
ernments  foreboro  to  prohibit  pelagic  sealing  in  the  North  Pacifie 
()(!ean  ])ending  this  arbitration,  in  the  evident  hope  and  belief  that  the 
award  in  this  case  would  be  made  in  time  to  ]>revent  any  seriously 
mischievous  efi'ects  of  that  i)ursuit,  by  u  decision  that  would  settle  the 


3  It*.,; 


(juosttoii  wlii'tlior  tlu>  ri<;lit  uiid  duty  ot  i)rot«'«'tinpf  scnl  lifo  would  rohfc 
exrliLsivcIy  with  the  United  Sliites,  or  would  nupiire  to  bo  acconi- 
plisiied  tliioujih  tlie  (•onttuiiciit  uction  ot'botii  (Jovei  iiincntM. 

N()iiow('i  wiis  conrencd  on  tiiis  Irihunal  to  luotoet  tlio  «oiil  herd, 
tlu^  |Ui',s('i\;ilioM  of  whicli  is  the  {fieat  Iciidinjf  jiuiposo  of  the  arbitra- 
tion, wliilc  tlie  proceed iufi's  ait'  in  i>ro;iiess.  Tlie  lesult  is  that  unic- 
Htiained  peliijiie  fur  sciilin^j  is  now  iiein}?  carried  on  in  the  North 
J'aeilii!  Oi-ean,  iind  if  tiie  experiences  of  the  yen rs  1S!)1  smd  iSiHJ  are 
repealed  in  IS!>.'5,  llu',  destruction  of  the  species  is  now  progressinjjf 
witli  fatal  liipidity. 

In  view  of  these  facts,  it  is  of  vitiil  importance  tii'it  the  liunuine  and 
wise  [>urpose  of  both  (lovernuients  to  [ireserve  and  pr(»tect  these  fur- 
seals  siiould  iu)t  be  defeated  by  any  objeetion  to  the  Jurisdietibn  of  this 
tribunal  that  is  based  on  technical  grounds,  aiul  is  held  back  by  the 
objector  to  meet  tlie  views  of  counsel,  or  others,  upon  a  question  of  the 
order  of  our  proceed inj;s.  Especially  is  this  true  when  one  of  the 
Govcrunu'uts  is  solemnly  denying  to  this  tribuiuil  theri{j;ht  toconsi<ler 
a  vital  feature  of  the  sul)jeet  submitted  to  the  tribunal,  which  the 
other  {••overnment,  with  e(pial  force  and  tirmness,  asserts  to  be  clearly 
within  their  competency.  Under  such  conditions  no  one  can  foretell 
with  certainty  whether  the  award  that  this  tribuiud  shall  make  will 
result  in  protecting  and  jtreseivinj;'  seal  life,  or  will  only  invite,  here- 
after, a  wider  and  more  tletermined  controversy  between  the  two  Gov- 
ernments. 

For  my  part  I  regard  the  ]»resent  situation  as  being  dangerous  and 
deph)rable,  and  I  most  earnestly  desire  that  this  tribunal  shall,  in  the 
outset,  deti'rmiiie  its  responsibilities  and  meet  them  in  whatever  way 
it  may  think  its  duties  require. 

To  relieve  this  embarrassing  situation  Mr.  Justrco  Harlan  has  offered 
th  >.  following  motion: 

j\[r.  Justice  Harlan  moved  that  the  tribunal,  before  entering  upon  the 
matters  submitted  by  the  treaty,  determine  its  competency  so  far  as  it 
may  be  involved  in  the  foUowing  questions: 

1.  Is  it  couq)etent,  under  tlui  treaty,  for  this  tribunal  to  prescribe 
regulations  ai)plicable  to  such  ]>arts  of  the  North  Pacific  Ocean,  out- 
side the  .jurisdictional  limits  of  the  two  Governments,  as  are  traversed 
by  the  seals  fre(pienting  the  L'rihilof  Islands,  if,  upon  the  facts,  regu- 
lations of  that  character  are  necessary  "  for  the  proper  i)rotection  and 
jneservation  of  the  fur-seal  i>t,  or  habitually  resorting  to,  Behring 
Sea." 

li.  Is  it  competent,  under  the  treaty,  for  the  tribunal  to  prescribe 
regulations  for  a  •'  closed  season  "  covering  such  waters  of  both  Behring 
Sea  and  the  North  Pacitic  Ocean,  outside  the  jurisdictioual  limits  of 


I«l  rest 

licrd, 
rltitiii- 
t  uiirt'- 

Novtli 
S«)2  are 

me  and 
ese  fur- 

I  of  this 
by  the 

II  of  tlio 
li  of  the 
L!()iisi(ler 
licli  the 
)  clearly 
1  foretell 
like  will 
ite,  liere- 
wo  Gov- 

ous  and 

|11,  in  the 

ver  way 

s  offered 


^ipon  the 
1  far  as  it 

)res<!ril)0 
Min,  ont- 
Iraversed 
ts,  resu- 
lt ion  and 
iBeliring 

)rescribo 

IJeliring 

limits  of 


tlie  two  roinitricH,  as  are  lialdliialiy  traversed  by  tlicse  fnr  seal,  and 
einl)ra('iii^'  tiu^  iiioiitlis  (lining  wliicli  fur-seal  may  l>e  taUen  in  tli(^o|K'n 
Heas,  and  duriii;;  wliieli  'mIosimI  .'casoii ''  all  liaiitiii,;;"  of  seals  in  siu-li 
waters  sliall  be  lorltiddeii.  ]»r(ivi(|e<|  I  lie  facts  show  tliat  rej;iilatiuiis  of 
that  eliaraeter  are  necessary  ••  foi'  the  proper  protection  and  preserva- 
tion of  the  fur-seal  in,  or  haldtnally  resoitiii;;  to,  IWdirinj;'  Sea/' 

The  nu)tion  of  Mr.  Justice  Harlan  that  I  have  Just  read  was  sub- 
mitted to  the  Tribunal  (d' Arliitratioii  on  Saturday,  duly  ir»,  at  tlm  first 
nu^etinfi'  of  'he  Arbitrators  for  consultation,  alter  the  close  of  the  (>ral 
arguments  ot  counsel. 

This  motion  relates  to  two  disputed  (piestions  as  to  the  poweis  of 
the  tribunal,  whi(di  were  raised  and  formally  presented  by  the  (lovern- 
ment  of  Great  llritain,  in  its  counter  ease,  on  February  3,  1S9;{,  as 
follows  (page  102): 

The  position  here  taken  on  the  part  of  Great  Ibitain  is  that  already 
taken  in  the  original  case.     It  is  theit^  staled: 

"Finally,  that  while  Great  iSritain  has  from  the  first  strenuously  and 
consistently  opjxtsed  all  the  tbre^'oing  (^xiicptional  pictensioiis  ami 
claims,  she  has  throughout  been  favcnably  disposed  to  the  adojjtion  of 
(iciin'dl  measures  of  control  of  the  fur  seal  iishery  should  these  be 
Ibiind  to  be  necessary  or  desirable  with  a  view  to  tiie  in'otcifion  of  the 
fur-seals,  ])rovided  that  such  measures  be  equitabk^  aiid  framed  on 
just  grounds  of  common  interest,  and  that  ihv  aiUicnion  of  <itli(  r  poivtrs 
be  secured  as  a  guaranty  of  their  cdiitiiiiied  and  impartial  execution." 

For  the  cori'espondeiiee  on  this  point  the  Arbitrators  are  respect- 
fully referred  to  the  ai)pendix  to  the  United  State*  Case. 

A  claim  is  made  in  the  concluding  words  of  the  LTiiiled  States  Gase 
that  such  regulations  be  "prescribed  by  this  high  tribunal  as  will 
elfectnally  i)rohil)it  and  i)ievent  the  caitture  anywhere  upon  the  high 
seas  of  any  seals  belonging  to  the  said  herd." 

IJer  Majesty's  Government  respectfully  ])rotests  that  no  power  to 
impose  on  th(!  contracting  i»arties  a.  total  i)rolnbition  of  ixdagic,  sealing 
is  conterred  on  the  tribunal  by  the  arbitration  treaty,  wliethei'  the 
assent  of  other  nations  be  or  be  not  made  a  condirion  of  su(di  prohi- 
bition. 

Article  vil  emi)nwers  the  Aibiliators  to  "determine  what  concur- 
rent regulations  outside  tlii^  jurisdictional  limits  of  the  res',tectiv(^  gov- 
ernments are  necicssary,  and  over  what  waters  such  regulations  slnaild 
extend." 

The  power  thus  (conferred  ndates  to  the  only  area  in  disj)ute,  viz, 
th(^  waters  of  IJehriiig  Sea  eastwaid  of  tlie  line  of  deinaication  sncc- 
itied  in  tlu^  Treaty  of  Cession  of  I.SiiT,  and  excliules  the  supposition 
that  prohibition  could  have  been  intended. 

1  have  copied  the  full  statement  of  the  IJritish  Government  as  to  its 
position  on  this  subject,  both  in  the  Case  and  Counter  Case,  that  we 
may  have  the  whole  subject  before  us  in  the  connected  Ibrm  in  whi(di 
it  is  thus  presented  in  the  British  Counter  Case. 

It  will  be  seen  that  Great  Britain  in  stating  .ts  objections  and  pro- 


r«   i 


Hi. 


^1'^^ 


6 

tost  aj>aiiist  tlic  existence  of  tliesc  powers  uiuU'i'  the  treaty  :.f  Pebniary 
29,  1802,  aiul  tlieir  exercise  by  the  Tribunal  of  Arbitration,  makes  no 
reCerenc  io  aiiytliing  except  the  text  of  the  treaty.  No  anibif>nity  in 
any  ]>art  of  the  treaty  is  snj>f><'sted  and,  consequently,  (^ireat  Britain 
had  no  occasion  to  <xo  outside  of  the  text  of  the  treaty  in  order  to  pre- 
sent distinctly  iho  <;rounds  of  objection  to  the  power  of  this  tribunal 
to  make  such  regulations  as  are  stated  in  the  foregoinj^  extracts  from 
the  I'ritish  counter  case.  This  tribunal  must  for  that  reason,  and  for 
every  reason  that  could  exist  in  respect  to  its  warrant  of  authority  to 
take  any  valid  action  in  this  proceeding,  look  to  tlie  text  of  the  treaty 
alone  for  its  powers. 

There  is,  then,  no  occasion  for  delay  in  respoiuling  to  the  objection 
aiul  protest  of  Great  Hritiau  as  above  stated,  for  it  is  not  possible  that 
any  further  facts  can  bo  presented  that  would  throw  any  light  upon 
tlie  subject. 

This  challenge  of  the  powers  and  authority  of  the  Tribunal  of  Arbi- 
tration, and  this  protest  against  their  action  in  determining  any  regu- 
lations to  restrain,  or  prohibit,  pelagic  fur-sealing  outside  tlie  waters  of 
iJeiing  Sea,  was  not  presented  as  a  diplomatic  (piestiou  to  the  Gov- 
ernment of  the  United  States,  but  is  now  for  the  tirst  time  presented 
as  a  protest  to  the  tril)unal,  to  warn  it  against  the  usurpation  of  unwar- 
ranted jutwers,  and  a  statement  that  the  powers  mentioned  in  the 
protest  are  not  conferred  upon  the  tribunal. 

Under  no  circumstances  is  it  to  be  assumed  that  these  objections  to 
the  powers  of  the  tribunal  are  lightly  suggested  to  excite  in([uiry  or  to 
awaken  the  attention  of  tlie  tribunal,  coming  as  they  do  from  a  most 
enlightened  and  powerful  Government,  or  that  their  ellect  will  not  be 
felt  ill  siibscipient  iiupiiries  by  (Jreat  Uritain  into  the  question  whether 
the  tribunal  has  acted  iiltni  circs,  if  its  award  sIkuiUI  injuriously  alVect 
the  interests  of  the  subjects  of  Great  Britain.  Moreover,  these  objei;- 
tions  and  protests  were  repeated  in  the  most  earnest  way  by  the 
attorney-general  of  (xieat  Britain,  and  by  each  of  the  able  counsel  who 
assisted  him,  in  the  written  and  oral  argiiiiuMts  made  before  the  tribunal. 
It  is  not  necessary  to  call  attention,  in  detail,  to  these  arguments, 
for  the  record  of  them  is  preserved,  and  their  ability  and  learning  is  so 
conspicuous  that  tlieir  iiiiliience  can  not  be  ignored. 

These  objections  to  1  he  powers  of  the  Tribunal,  as  to  the  regulat i(m  of 
pelagic  sealing,  were  fust  taken  in  the  Briti.sh  Counter  Case. 

lu  the  original  Case,  on  page  100,  in  paragraph  LD  of  the  ''llecapitu- 


:»bvnary 
ukcs  no 
2;uity  in 
Ikitaiu 
•  to  pi**- 
U'ibunal 
3ts  from 
and  lor 
lority  to 
.0  treaty 

ihjoction 
iblc  that 
;Ut  upon 

of  Arl)i- 
my  w'^n- 
^vatersof 
the  Gov- 
irescntcd 
unwar- 
X  in  the 

otions  to 
ly  or  to 
n  ii  most 
11  not  he 
whethor 
^\y  alVect 
e  ohjee- 
by  the 
iiscl  who 
bribunal. 
^unuMits, 


ling  IS  so 


llatiou  of 


lecapitu- 


lation  of  Argfument,"  the  following  is  the  position  taken  by  the  British 
Government: 

10. — No  regulations  alfecting  r.ritish  subjects  can  be  established  for 
the  protection  and  |)roservation  of  I'nr-seals  in  the  nonterritorial  waters 
of  Bering  Sea  without  the  concurrence  <d"  Great  Britain. 

That  statement  is  quite  in  line  with  the  power  of  this  Tribunal  to 
declare  either  that  it  accorded  with  the  legal  rights  of  British  subjects, 
or  that  it  did  not.  That  was  not  an  assault  on  the  powers  of  the 
Tribunal,  but  a  strong  appeal  to  its  judgment  on  an  alleged  right  of 
British  subjects. 

The  other  statement  on  this  subject,  found  in  the  British  Case,  I 
have  already  quoted,  but  will  r<»peat.  It  is  taken  from  au  outline  of 
argument  on  page  1),  and  is  as  follows: 

Finally,  that  while  Great  Britain  has  from  tlie  first  strenuously  and 
consistently  oi)p()sed  all  the  foregoing  exceptional  ijrctensions  and 
claims,  she  has  throughout  been  favorably  disposed  to  the  adoi)tion  of 
(jcnerni  measures  of  contnd  of  the  fur-seal  lisheiy,  should  tliese  be. 
found  to  be  necessary  or  desirable  witli  a  view  to  the  ])rotectioii  of  the 
fur-seals,  ])iovided  that  such  measiin^s  be  ecpiitable  and  framed  on  just 
grounds  of  common  interest,  and  that  the  adhesion  of  other  j>r>>rt7',s  be 
secured  as  a  guarantee  of  their  continued  and  impartial  execution. 

The  '  "»iecrions  raised  in  the  British  counter  ease  (above  cited)  to  the 
jurisdiction  of  the  Trilmnal  of  Arbitration  arc  far  more  urgent  in  their 
demand  for  diplomatic  settlement  than  the  question,  that  was  settled 
in  that  way,  relating  to  the  matter  of  the  deteiiiiination  of  Great 
Britain  to  abide  by  and  perform  the  award  of  the  tribunal. 

If,  however,  the  Tribunal  of  Arbitration  sh;>M  determine  to  proceed  to 
alinal  award  witliout  referring  tliis  vital  quoslion.  as  to  their  powers, 
to  the  two  (iovernments  for  their  liu  tlier  consideration  they  must  incur 
the  risk  of  having  their  award  repudiated  by  the  one  (5overnment  or 
the  other. 

Thoeascof  the  United  vStab^s  is  liased  in  a  large  part,  if  not  most 
largely,  upon  the  fact  tnat  the  Tribunal  of  Arbitration  has  the  powers 
that  are  indicated  in  the  two  propositions  stated  in  the  motion  of  Mr. 
Justice  I  rail:"!.     ^luch  more  than  half  of  the  testimonv  oi'fcred  and 


cited  by  ts.  .  counsel  for  the  respective  Governments  was  adduced  in 
elucidation  of  the  subject  of  the  regulations  that  arc  proper  for  the 
protection  and  ])resi'i'vation  of  fur-seals  in  the  North  racillc  Ottean. 
It  is,  taken  together,  au  immense  mass  of  facts  and  expert  opinions. 

The  argument  of  counsels  on  the  i)art  of  the  United  Hrates  were 
adtlressed  at  great  length  and  with  untiring  indusiry  aud  the  liighest 


8 


fill- 


ability  to  point  out  the  powers  of  this  trilmiial  to  rcgnlafo  iiolnsif  fni'- 
sealing  in  the  North  Pacific  Ocean  and  iu  Bering  Sea.  No  motion 
was  madeorintiniated  on  the  hearing  that  this  tribunal  should  refuse  to 
admit  such  evidence  on  the  ground  that  it  had  no  jurisdiction  to  make 
regulations  to  protect  and  preserve  the  fur-seals  in  the  North  Pacific 
Ocean. 

After  all  this,  is  it  a  reasonable  expectation  that  the  United  States 
will  accept  an  award  that  ignores  the  greater  part  of  its  case?  Can 
w^e  assume  that  the  United  States  has  consented  to  a  treatj',  and  made 
this  earnest  effort  to  present  its  rights  in  accordance  with  it,  and 
will  be  content  that  this  tribunal  shall  find  that  it  has  lu)  power  even 
to  consider  those  rights? 

Moreover,  we  are  called  upon  to  decide  that  the  powers  of  tlie  tri- 
bunal to  regulate  pelagic  sealing  are  confined  to  the  area  of  Bering 
Sea;  and  to  base  that  finding  on  the  alleged  fact  that  this  is  "the  only 
area  in  disi)ute.''  To  find  this  alleged  fact  we  are  invited  to  quit  the 
text  of  the  Treaty  and  to  go  into  the  diplomatic  correspondence  that 
led  to  its  adoption  for  our  authority  so  to  construe  that  instrument. 
That  process  of  construction  might  be  adopted  by  this  tribunal  as  a 
means  of  clearing  up  an  ambiguous  expression  in  the  Treaty,  under 
which  a  right  is  claimed  in  favor  of  either  party,  but  no  such  proceed- 
ing can  be  resorted  to  in  order  to  limit  or  enlarge  our  powers  as  a 
Tribunal  of  Arbitration.  That  M'onld  be  to  make  a  treaty  by  con- 
struction, and  then  to  proceed  to  administer  rights  under  it. 

Much  less  can  this  tribunal  create  its  powers  by  merely  declaring 
them.  Our  powers  are  to  be  found  in  the  clear  meaning  of  the  text  of 
the  treaty,  or  they  do  not  exist.  If  we  find  them  in  the  treaty  we  <;an 
not  refuse  to  exercise  them. 

1  will  not  now  i)resent  an  argument  in  support  of  the  existence  of 
the  powers  stated  in  the  motion  of  Mv.  .lusti(.'e  Harlan  further  than  to 
make  some  quotati(Uis  from  the  text  of  the  treaty,  premising  that  I 
understand  it  to  be  fully  admitted  on  all  hands  that  a  great  and  lead- 
ing purpose  of  both  governments  in  making  this  treaty  is  to  i)ro(cct 
and  preserve  tiie  fnv-seals  in,  or  that  liabitnally  resort  to,  P.ering  Sea. 

The  fur-seals  to  which  this  treaty  relates  comjuMse  a  family  or  licid 
of  animals  that  are  in  liering  Sea,  or  habitually  resort  to  those  wateis 
and  the  islands  in  that  sea.  As  the  protection  and  ])reservation  of 
these  animals  is  the  real  I'csult  sought  to  be  accomi)lislied  by  i  ;<' 
treaty,  the  only  accurate  method  of  dolining  the  scope  of  the  pow;:rs3 


9 


"ic  fnv- 
motion 
cf use  to 
;o  ma  lie 
Pacific 

1  States 
)?  Can 
id  made 
it,  and 
iev  even 

■  tlie  tri- 
'  Bering 
tlie  only 
qnit  tbe 
snee  that 
tinment. 
anal  as  a 
;y,  under 
proceed- 
ers  as  a 
by  con- 

oclarinft' 
e  text  of 
we  <-'an 

tence  of 

than  to 
g  that  I 
nd  lead- 
)  i)r()tect 

111-,'  vSea. 

or  herd 
>  waters 

ation  of 
by  I  Ki 

3  IJOWOiO 


of  tliis  tribnnal  for  tlieir  protection,  as  to  its  api»lication,  was  to 
describe  the  herd;  but  the  restrictions  upon  the  limits  of  the.jurisdiction 
are  defined  by  the  territorial  boundaries  of  the  two  conntries  tliat  own 
all  the  shores  and  islands  that  are  washed  by  the  waters  in  which  these 
animals  are  found  that  resort  to  Bering  Sea. 

In  the  light  of  these  facts,  disclosed  on  the  face  of  the  treaty,  the 
following  quotations  irom  the  treaty  make  it  clear  that  this  tribunal 
liosscsses  the  jiowers  stated  in  the  motion  of  Mr.  Justice  Harlan: 

Article  I. 

The  questions  which  have  arisen  between  the  Government  of  Tfer 
Britannic  JNlajcsty  and  the  Government  of  the  United  States  concern- 
ing the  jurisdictional  rights  of  the  United  States  in  tlie  waters  of  15er- 
ing  Sea,  and  concerning  also  the  priNcrvation  of  ihe J'ur-sval  in  or  habit- 
it'-'Iy  resorting  to  the  said  sea,  and  the  riyhta  of  the  citi;:eus  and  subjects  of 
■Hi''f  country  a,v  regards  the  tuldiuj  of  far-scdl  in  or  habitually  resorting 
to  said  uatcrs,  shall  be  submitted  to  a  tribunal  of  lU'bitratiou,  to 
be  composed  of  seven  arbitrators. 

•  •••••• 

Article  III. 

The  printed  case  of  each  of  the  two  parties,  accompanied  by  the  doc- 
uments, the  oilicial  corres])ondence,  and  the  evidence  on  wlii»-ii  eacli 
relies,  shall  be  delivered  in  duplicate  to  each  of  the  arbitrators  and  to 
the  agent  of  the  other  ])arty  as  soon  as  may  be  after  the  a])poiiitnHMit 
of  the  members  of  the  tribunal,  but  within  a  period  not  exceeding  limr 
mouths  fi'om  the  date  of  the  exchange  of  the  ratilicatious  of  this  treaty. 

Article  ly. 

Within  i  !!,■•((  months  after  the  delivery  on  both  sides  of  the  printed 
case  eithoi  piuvy  may,  in  like  manner,  deliver  in  dn]tli<ate  to  each  of 
th(^,  sai(=  a'  .iiVii'tuvs  and  to  the  agent  of  the  other  i)arty  a  counter  case 
and  adtiitii.ii;!!  doi'uments,  correspondence,  and  e\  idence,  in  rcitly  lo 
the  cu. M'.  doct.  r.en*  s,  correspondence,  and  evidence  so  i)resented  by  the 

other  party. 

•  •••••• 

Article  VI. 

In  deciding  the  matters  submitted  to  the  arbitrators  it  is  agreed  th.at 
the  following  five  points  shall  be  submitted  to  them,  in  order  that  th«'ir 
award  shall  embrace  a  distinct  decision  upon  vach  of  said  live  points, 
to  wit ; 

1.  V^  '  i*"  e"?clnsive  jurisdiction  in  the  sea  now  hnown  as  the  Behring 
Sea,  ail*'  •  I-  it  exclusive  rights  in  the  "-"al  fisheries  therein,  did  Kussia 
assert  ixiui  -xen  ise  prior  and  up  to  tin  time  of  the  cession  of  Alaska 
to  the  United  States? 

r>.  Has  the  United  States  any  right,  and,  if  so,  what  right,  of  pro- 
tection or  property  in  the  fur-seals  frequenting  the  islands  of  the  United 


^''1 


$>  tl 


10 


ll  1 


States  in  Behring  Sea  when  such  seals  are  found  outside  the  ordinary 
3-mile  limit  f 

AllTICLE    VII. 

Tf  the  determination  of  the  foregoing  questions  as  to  the  exclusive 
jniisdietioii  of  the  Unitetl  States  shall  leave  the  subject  in  such  position 
that  tlie  concunence  of  Great  Britain  is  necessary  to  the  establishment 
of  Kegulations  for  the  proper  protection  and  i)veservation  of  the  fur- 
seal  in,  or  habitually  resorting  to,  the  llehring  Sea,  the  Arbitrators 
shall  then  determine  what  concurrent  Eegulations  outside  the  jurisdic- 
tional limits  of  the  respective  Governments  are  necessary,  and  over 
what  waters  such  llegulations  should  extend,  and  to  aid  them  in  that 
determination,  the  report  of  a  Joint  Commission,  to  be  appointed  by 
the  resi)ective  Governments,  shall  be  laid  before  them,  with  such  other 
evideiu'C  as  either  Government  may  submit. 

The  High  Contracting  Parties  furthermore  agree  to  cooperate  in 
securing  the  adhesion  of  oth«  i  i'owers  to  such  Kegulations. 


Ae 


:  IX. 


•  ••»••• 

Each  Government  shall  appoint  two  Commissioners  to  investigate, 
conjointly  with  the  Commissioners  of  the  otlu'r  Government,  all  the 
facts  having  relation  to  seal  life  in  Hehring  Sea.  and  the  measures 
necessary  for  its  proper  protection  and  preservation. 

The  four  Commissioners  shall,  so  far  as  they  may  be  able  to  agree, 
make  a  joint  report  to  each  of  the  two  Governments,  and  they  shall  also 
re])(n't,  either  jointly  or  severally,  to  each  Governmenton  any  i)oints  on 
whi(!h  they  nuiy  be  unable  to  agree. 

These  reports  shall  not  be  made  public  until  they  shall  \n\  snbmitted 
to  tlie  Arbitrators,  or  it  shall  appear  that  thecontingency  of  their  being 
used  by  the  Arbitrators  can  not  arise. 

Article  XIV. 

The  High  Contracting  Parties  engage  to  consider  the  result  of  the 
proceedings  of  the  Tril)\iiial  of  Arbitration  as  a  full  and  tinal  settle- 
ment of  all  the  qiiestions  referred  to  the  Arbiti-ators. 


MODUS  VIVENDI  OF  1802. 

Article  I. 

Tier  Majesty's  Goveriiment  will  prohibit,  during  the  pendency  of  the 
arl)itration,  seal  killing  in  that  part  of  IJeliiing  Sea  lying  eastward  of 
the  line  of  demarcation  described  in  Article  1,  of  tlie  Treaty  of  18(!7 
between  the  United  States  and  Uussia,  and  will  ]n'om])tly  use  its  best 
etforts  to  ensure  the  observance  of  this  piohibition  by  British  subjects 
and  vessels. 

Article  IE. 

The  United  States  Government  will  i>rohil)it  seal  killing  An' the  same 
period  in  tlui  sanie  part  of  Hehring's  Sea  and  on  the  shores  and  islands 
tiiereof  the  property  of  the  United  States  (in  exc^ess  of  se\en  thousaiul 
fiv(^  bundled  to  be  taken  on  the  islands  for  the  subsistence  of  the 
natives),  ami  will  jnomptly  use  its  best  efforts  to  ensure  the  observance 
of  this  prohibition  by  Uuited  (States  citizens  and  vessels. 


<)rdmary 


sxclttsive 
position 
lisliincnt 
■  the  fur- 
hitrators 
jiirisdic- 
and  over 
na  in  that 
)iuted  by 
LicU  otlier 

pcruto  ill 


V  estimate, 

it,  all  the 

lueasures 

i  to  asveo, 
/•  shall  also 
r  points  on 

snhmittod 
heiv  being 


nit  of  the 
Inal  settle- 


Micy  of  tho 
jistwavd  of 
Ity  of  KS(>7 
Ise  its  best 

h  subjects 


Ivthosiinie 
Ind  islaixls 
thousiind 
luce  of  the 
Ibseivuuco 


11 

Akticle  III. 

Every  vpssel  or  person  offending  against  this  prohibition  in  the  said 
waters  of  Ik'hring  Sea  outside  of  the  ordinary  territorial  limits  of  the 
United  States  may  be  seized  and  detained  by  the  naval  or  other  duly 
commissioned  ollicers  of  either  of  the  High  Contracting  I'arties,  bat 
they  shall  be  hamled  over,  as  soon  as  i)racticable,  to  the  authorities  ol' 
the  nation  to  which  they  respectively  belong,  who  idoue  shall  have 
jurisdiction  to  try  the  olfence  and  impose  the  penalties  for  the  same. 
The  witnesses  and  proof  necessary  to  establish  the  ollence  shall  also 
be  sent  with  them. 

Article  V. 


If  the  result  of  the  arbitration  be  to  aHlrni  the  right  of  British  seal- 
ers to  take  seals  in  Behiing  Sea  within  the  bounds  claimed  by  the 
United  States  under  its  purchase  from  llussia,  then  compensation 
shall  be  made  by  the  United  States  to  Great  Britain  (for  the  use  ()f 
her  subjects)  for  ab  .ai.iing  from  the  exercise  of  tlnit  right  during  pen- 
dency of  the  arbit  .ition,  upon  the  basis  of  su(di  a  regulated  and  limited 
catch  or  catches  as  in  the  o]>inion  of  the  arbitration  might  have  been 
taken  without  an  undue  diminution  of  the  seal  herds;  and,  on  the  otiicr 
hand,  if  the  result  of  the  arbitration  shall  be  to  deny  the  right  of  JJrit- 
ish  sealers  to  take  seals  within  the  siiid  waters,  then  compensation 
shall  be  made  by  Great  iiritain  to  the  United  States  (tor  itself,  its  cit- 
izens, find  lessees)  for  this  agreement  to  limit  the  island  catch  to  seven 
thousand  iive  hundred  a  season,  upon  the  basis  of  thes  ditleieni-e 
between  this  nuud)er  and  such  larger  catch  as  in  the  opinion  of  the 
Arbitrators  might  have  been  taken  without  an  undue  diminution  of  the 

seal  herds. 

******* 

There  are  no  italics  in  the  text  I  have  just  quoted.  The  regulations 
proposed  by  the  United  States  for  adoption  by  the  Tribunal  of  Arbi- 
tration are  in  keeping  with  the  suggestions  contained  in  the  motion 
presented  by  Mr.  .Justice  Harlan;  but,  while  the  British  Government 
denies  to  the  tribunal  the  powers  therein  stated,  the  regulations  olfered 
by  that  Governnu'nt  for  our  adoption  would  necessarily  depend  on  the 
assertion  of  the  same  powers. 

They  are  as  follows,  the  regnlation  nund)ered  8  having  been  pre- 
sented to  the  tribunal  and  then  withdrawn: 

KEfi  ULATIONS. 

1.  All  vessels  engaging  in  pelagic  sealing  shall  be  required  to  obtain 
licenses  at  oru>  or  other  of  the  i'ollowing  poits: 

Vicitoria,  in  the  province  of  liritish  Golnmbia. 

V^ancouver,  in  the  ju'ovince  of  Ibitish  Goliimbia. 

I'ort  Townsend,  in  Washington  Territory,  in  the  United  States. 

San  Francisco,  in  the  State  of  California,  in  the  United  States. 

2.  Such  licenses  shall  only  be  grante<l  to  sailing  vessels. 

.">.   A   zone  of  20  miles  around   the  I'ribilof  Islands  sliall  be  estab- 
lished, within  which  no  seal  hunting  shall  be  permitted  at  any  time. 
4.  A  close  season  from  the  loth  of  September  to  the  1st  of  July  shall 


w 


12 

bo  ostal)lisliO(l,  during  wliicli  no  pelagic  scaling  shall  be  pcrinittod  in 
IJoluing  Soa. 

5.  No  lilies  or  nets  shall  be  used  in  pelagic  sealing. 

G.  All  sealing  vessels  shall  be  re<iuired  to  cany  a  disHngnishing  flag. 

7.  Tlie  masters  in  charge  of  sealing  vessels  siiall  Ivcep  accurate  logs 
as  to  tlie  finu^s  an<l  places  of  sealing,  the  nund)er  and  sex  of  the  seals 
caittnred,  and  shall  enter  an  abstract  thereof  in  their  official  logs. 

8.  Licenses  shall  be  subject  to  forfeiture  for  breach  of  above  regula- 
tions. 

Whence  comes  the  i)o\ver  of  this  tribunal,  asserted  in  this  programme, 
to  bind  Great  Britain  and  the  United  States  to  enact  laws  requiring 
all  vessels  engaged  in  pelagic  sealing  to  obtain  licenses  at  07ic  or  the 
other  o(  the  following  i)orts,  viz:  Victoria,  Vancouver,  Port  Townsend, 
and  San  P^ratutisco?  All  o-f  these  are  seaports  on  the  Pacific  Ocean, 
and  San  Francisco  is  below  the  waters  in  which  fur-seals  are  found  or 
hunted. 

To  make  this  regulation  the  tribunal  must  go  2,000  miles  south  of 
Behring  Sea,  with  its  authority,  and  enter  the  seaports  of  both  Govern- 
ments. 

Our  authority,  thus  conceded,  to  make  regulations  to  protect  and 
preserve  the  fur-seals  in  or  habitually  resorting  to  Bering  Sea,  must 
not  only  enter  within  the  ordinary  3-mile  limit  of  each  of  these 
sovereign  powers,  under  this  programme,  but,  while  there,  it  must 
destroy  the  pelagic  hunting  rights  of  all  owners  of  steam  vessels  and  all 
the  persons  who  hunt  seals  in  (!anr>es,  by  denying  to  them  a  license  for 
pelagic  sealing.  We  must,  while  in  these  ports,  disarm  pelagic  seal 
hunters  of  rifles  and  nets  while  leaving  to  the  licensees  the  use  of  the 
deadly  double  barreled  shotguns,  repeating  pistols,  and  swivels.  While 
there  we  are  expected  to  regiUate  navigation  by  creating  a  new  inter- 
national llag  for  the  benelitof  thefour  i)orts  that  are  given  the  monop- 
oly, by  these  i)roposed  regulations,  of  outfitting  all  licensed  sealers 
and,  consequently,  of  handling  the  great  spring  catch. 

Then  when  we  are  engaged  in  establishing  a  close  season  during  which 
no  pelagic  sealing  shall  bo  permitted  in  Bering  Sea,  we  must  al:>o  Mx 
the  boundaries  of  that  sea,  not  yet  fixed  by  any  law  or  treaty.  Other- 
wise, we  can  not  deiine  the  boundary  that  shall  separate  innocence 
from  guilt  in  pelagic  sealing. 

I  nside  Bering  Sea,  we  must  fix  and  deniark  a  zone  of  20  miles  around 
the  Pribilof  Islands  within  which  the  seals  shall  live  and  pelagic 
sealing  shall  perish, 

None  of  these  various  regulations — which  would  destroy  some  private 


nil  tod  in 


linj?  flitg. 
rate  loji's 
the  seals 

e  regnla- 


igrainine, 
requiring 
me  or  ihe 
Dwnscnd, 
c  Ocean, 
found  or 


south  of 
I  Goveru- 

otect  and 

3ea,  nuist 

of   tliese 

,  it  must 

s  and  all 

icensc  for 

agic  seal 

se  of  the 

While 

e\v  inter- 

0  mnnop- 

d  sealers 


ng  which 

al;>o  iix 

Other- 

ino3ence 


s  around 
I  pelagic 

e  private 


18 

rights  of  the  people  and  build  np  others;  would  create  nionftpolies  for 
some  towns,  to  the  great  disadvantage  of  others;  would  build  up  some 
railroads  and  cripi>le  others — are  so  clearly  within  the  power  of  this 
tribunal  to  lU'otect  and  preserve  the  fur-seals  as  the  deterniinatiou  of 
a  close  season  in  the  Pacitic  Ocean,  or  of  the  prohibition  of  all  pelagic 
sealing  would  be. 

The  British  Government,  through  its  attorney  general,  can  give 
authenticity  to  any  plan  we  may  adopt  for  carrying  out  the  puri)()ses 
of  the  treaty,  so  as  to  bind  that  Government  at  least,  and  although  the 
regulations  thus  presented  to  the  tribunal  may  involve  an  award  by 
the  tribr  Ml  t!iat  would  be  nltra  vires,  if  they  should  be  adopted,  the 
award  would  have  the  valid  and  binding  consent  of  Great  Britain. 
The  United  States  can  not  be  thus  pledged  to  any  consent  decree  and 
nmst  accept  what  we  award  without  question,  except  that  the  tribunal 
must  act  within  its  just  powers  under  the  treaty. 

The  regulations  thus  authentically  proposed  by  Great  Britain,  being 
entirely  inconsistent  with  its  contention  that  the  powers  of  this  tribu- 
nal are  confined  to  the  area  of  Bering  Sea,  it  is  justly  to  be  considered 
that  the  objection  to  the  exercise  of  a  more  extended  field  of  jurisdic- 
tion is  waived,  or  abandoned,  by  that  Government. 

The  examination  and  decision  of  the  questions  of  the  right  of  property 
in  the  fur-seals  in,  or  habitually  resorting  to,  Bering  Sea,  and  the  right 
to  protect  them  claimed  by  the  United  States  nocessaiily  extends  tiie 
jurisdiction  of  this  tribunal  on  that  question  to  the  North  Pacific 
Ocean. 

In  every  important  feature  the  case  is  an  entirety,  and  all  its  parts 
must  be  construed  in  pari  materia.  It  is  beyond  my  comprehension 
that  the  jurisdiction  of  the  tribunal  should  require  us  to  make  an 
investigation  into  a  great  variety  of  facts  and  the  laws  governing  the 
rights  of  the  United  States  as  to  property  and  protection  in  the  Pacific 
Ocean,  and  that,  when  the  protection  of  its  rights  is  reached,  the 
jurisdiction  of  the  tribunal  should  suddenly  cease. 

Yet,  if  the  objection  of  Great  Britain  is  still  urged,  it  is  apparently 
the  only  method  of  avoiding  a  very  embarrassing  condition,  that  the 
Tribuiml  of  Arbitration  should  present  to  both  Governments  the  pres- 
ent attitude  of  the  question  and  ask  them,  by  a  formal  agreement,  to 
remove  the  difliculty. 

Mr.  Justice  Harlan  and  myself  have  stated  to  the  tribunal  our  con- 
viction that  the  United  States  would  regard  the  decision  of  the  tri- 


s, 


14 

bnnnl  .is  being  in  violation  of  the  plain  provisions  of  the  treaty  if  they 
should  hold  that  they  have  no  power  iiiider  the  treaty  to  extend  what- 
ever regulations  they  may  lind  to  be  necessary  for  the  proper  protection 
of  the  fur-seals  into  the  Nortiiern  Pacific  Ocean. 

As  Ave  fully  concur  in  that  view  of  the  treaty  and  believe  that  the 
seal  herd  will  be  speedily  destroyed  if  proper  regulations  for  their  pro- 
tection in  Behring  Sea  and  in  the  North  Pacific  Ocean  are  refused,  we 
feel  compelled  to  seek  a  full  opportunity  to  i)resent  the  subject  to  our 
colleagues  without  the  enibarra.ssinenttliatnuist  attend  itsinvestigiition 
in  the  presence  of  a  pending  and  undecided  objection  on  the  part  of 
Great  IJritain  tliat  we  have  no  right  to  consider  the  subject  of  regula- 
tions a|)plicable  to  the  North  Pacific  Ocean,  because  this  tribunal  has 
no  power  to  award  any  regulatious  to  apply  outside  the  area  of  Behring 
Sea. 

We  believe  that  the  proi)er  way  and,  indeed,  the  only  way  to  secure 
an  unejubarrassed  consideration  of  this  subject  on  its  merits  is  to 
take  up  the  objection  of  Great  i3ritain  to  the  Juiisdiction  of  this  tri- 
bunal and  dispose  of  it.  1  believe  that  every  consideration  of  Just  and 
proj)er  procedure  in  this  case  requires  that  this  vital  <piestioii  as  to  the 
powers  of  this  tribunal  should  be  disposed  of  before  any  other  question 
in  the  case  is  taken  up.  The  questions  of  extending  regulations  beyond 
the  area  of  Jiehring  Sea  into  the  North  Pacitic  Ocean  and  of  prohibit- 
ing pelagic  sealing  ii  Bering  Sea  can  never  be  fairly  considered  upon 
their  merits  under  the  pressure  of  a  pending  objection  made  by  Great 
Ibltaiu  that,  whatever  convictions  au  Arbitrat(U'  may  have  as  to  the 
necfissity  of  such  regulations,  the  treaty  forbids  sucb  action  by  the 
Tribunal  of  Arbitration. 

The  Justice  of  the  request  that  this  question  shall  be  disprsed  of  in 
limine,  aside  from  its  logical  propriety,  isnumifest,  when  it  is  considered 
that  CJreat  Britain  has  made  this  serious  objection  to  the  jwwers  of 
the  tribuiuil  aiul  yet  insists  that  its  objection  shall  not  be  heard  until 
the  case  has  been  heard  and  decided,  in  all  other  respects,  upon  the 
merits. 

Can  it  be  Justly  claimed  that,  if  the  case  should  be  decided  in  ftivor 
of  the  contention  of  Great  Biitain  on  every  other  point,  on  the  merits, 
that  Government  could  at  its  pleasure,  permit  or  prevent  regulations 
from  being  adopted  applicable  to  the  North  Pacific  Ocean,  however 
necessary  they  may  be,  on  the  ground  taken  in  its  objection  to  the 
jurisdiction  oL  this  tribunal  that  it  has  no  power  under  the  treaty  to 
make  such  regulations  f 


if  they 
il  what- 
jtection 

hat  the 
leir  i>i'o- 
ised,  we 
t  to  our 
itigation 
l)ait  of 
f  regiihi- 
uiial  has 
Uehviiig 

to  secnt'O 
its  is  to 
f  this  tri- 
'  just  aud 
,  as  to  the 
•  question 
IS  beyond 
ju'ohibit- 
rod  upon 
by  Great 
as  to  the 
u  by  the 

Ised  of  in 
)usidoi'ed 
powers  of 
lard  until 
[upon  the 

in  favor 

|c  nierits, 

jgulations 

however 

)u  to  the 

treaty  to 


15 

It  shouhl  bo  determined,  now,  whether,  in  the  judgment  of  this 
tribunal,  a  power  of  this  dangerous  nuiguitiide  can  bo  wisely  or  justly 
left  in  the  control  of  either  party. 

If  this  power  to  extend  regulations  to  include  an  area  in  the  North 
Pacific  Ocean  does  not  exist,  as  Great  Britain  asserts  Unit  it  does  not 
exist,  no  concession  on  the  part  of  that  Government  could  create  the 
jjower,  without  the  consent  of  the  United  States.  It  would  re«piire  a 
change  in  the  treaty  to  create  that  jniwer  if  it  does  not  exist. 

The  only  ground  that  can  be  taken,  in  the  situation  presented  by  the 
objection  of  Great  Britain,  is  that  the  Tribunal  of  Arbitration  will 
decide  the  question  and  leave  it  to  the  respective  Governments  to  deter- 
mine what  course  they  will  pursue  in  view  of  the  decisicm.  It  will  result 
in  this,  at  last,  for  they  are  sovereign  Governments  and  there  are  none 
who  can  compel  either  of  them,  by  any  peatelul  means,  to  accept  and 
perform  an  award  which  they  may  believe  violates  the  treaty  under 
which  tliis  tribunal  is  acting. 

I  disclaim  all  auth(uity  to  speak  for  the  United  States  and  I  deny 
the  right  of  any  other  person  tobiiul  that  (Jovernment  by  any  declara- 
tion or  act  that  is  not  clearly  authorized  by  the  treaty. 

1  oidy  speak  for  myself  when  I  state  my  conviction,  that  the  objec- 
tion urged  by  Great  Britain  to  the  power  of  this  tribunal  to  nmke  reg- 
ulations to  protect  the  fur-seals,  which  shall  have  full  operation  out- 
side of  Bering  Sea,  if  it  is  sustained  by  this  tribunal,  will  destioy  a 
leading  and  most  important  feature  of  the  treaty. 

From  some  observations  of  Lord  Ilannen,  when  Mr.  Justice  Harlan 
presented  the  propositions  I  have  been  discussing,  I  hiul  that  his  objec- 
tion to  the  second  proposition  is  to  some  extent  based  on  the  point 
that  there  is  in  that  propositiim  a  delimitation  of  the  area  of  waters 
in  the  Pacific  Ocean,  over  which  the  regnlat  ions,  if  adopted,  will  extend. 
I  understand  INIr.  Justice  llarlan  to  say  that  such  is  not  his  inteiition, 
or  his  construction  of  that  resolution. 

Now,  in  order  that  the  question  of  the  power  of  the  tribunal  to  make 
regulations  that  will  extend  to  the  Pacifu;  Ocean,  outside  of  Bering  Sea, 
and  outside  of  territorial  limits,  may  be  presented  in  a  more  distinct 
form,  if  possible,  I  will  offer  the  f(dh)wing  as  a  substitute  for  the  two 
propositions  ottered  by  Mr.  Justice  Ilarlau,  which,  1  think,  covers  the 
substance  of  both  the  propositions  he  has  offered,  and  1  hope  it  may 
remove  the  objections  that  are  made  by  Lord  Ilannen  to  the  form  of 
those  proxiositions: 


16 


, .'( 


"This  Tribunul  of  Arbitiatioii  i.s  cinpowcred  by  tlio  treaty  of  Febrn- 
ary  2!),  18!)J,  betweci)  the  United  States  and  Gieat  liiitaiii,  to  deteiiuino 
what  (!oiiciin'Ciit  rcnuhitions  are  proper  to  bo  adopted  and  enforeed  by 
the  aetioii  of  the  respeetive  GoveriimentH,  appHcable  to  their  respective 
citi/ens  or  subjects,  outside  of  their  respective  territorial  limits  and 
outside  of  liering  Sea,  for  the  protection  and  preservation  of  fur-seals 
in,  or  habitually  resorting  to,  Bering  Sea." 

At  the  conclusion  of  the  foregoing  remarks  Mr.  Justice  Ilarlan 
accepted  this  declaration,  ottered  by  Senator  Morgan,  as  a  substitute 
tor  those  proposed  by  iiiui,  aud  moved  the  adoption  of  the  same. 


Ij    ^ 

J         n  I 


A.  QUESTION  BKING  UNDER  DISCUSSION  AS  TO  THE  PROPEK  ORDER  IN 
WIIIOII  THE  3IATTERS  SUHMITTED  TO  TIIK  TRIUUNAL  EOR  EXAMI- 
NATION SHOULD  HE  TAKEN  UP  AND  DISPOSED  OF,  AND  AS  TO  THE 
GENERAL  POWERS  AND  DUTIES  OF  THE  TRIUUNAL,  SENATOR 
MORGAN  MADE  THE  FOLLOWING  PRELIMINARY  RE3IARKS  TOUCH- 
ING THE  same: 

The  subject  witli  which  the  tiibunal  is  to  deal  is  a  inactical  one 
of  tiic  highest  iinportaiice.  On  tiie  part  of  Great  IJritain  a  claim 
asserted,  as  a  sovereign  power,  on  bclialf  of  lier  subjects,  to  tlie  right 
of  pelagic  hunting  of  fur-seals  in,  or  habitually  resorting  to  Bering 
Sea,  in  all  the  waters  of  the  North  Pacific  Ocean  that  are  not  included 
within  ordinary  territorial  limits,  without  any  restriction,  or  quali- 
fication, as  to  the  time,  place,  or  manner  of  their  destruction. 

In  the  Case  of  Cheat  Britain,  as  it  is  stated  to  the  Tribunal  of 
Arbitration  in  conformity  with  the  rcfpurements  of  the  treaty,  this 
claim  is  presented  in  the  broadest  form  and  the  i)resent  method  of 
pelagic  hunting  is  justitied  as  being  within  that  claim  of  right,  under 
international  law. 

Great  Britain  has  cited  the  principles  of  international  law,  and 
certain  analogies  relied  ui)on  to  sui)port  her  case.  Tlie  Government 
of  the  United  States,  under  the  same  requirement  of  the  treaty,  has 
presented  its  case  upon  the  law  and  evidence  in  like  manner. 

The  claim  of  the  United  States  is  made  in  the  name  and  on  behalf  of 
that  Government,  which  asserts  that  it  is  the  sovereign  owner  of  the 
fur-seals  that  habitually  resort  to  the  waters  of  Bering  Sea  and  to  the 
islands  within  that  sea  that  are  east  of  the  water  boundary  between 
liussia  and  the  United  States  of  America,  and  that  it  owns  these  fur- 
seals  as  proi>erty,  as  a  source  of  revenue,  and  as  an  instrumentality  of 
government. 

In  one  aspect  of  this  claim,  the  ownership  of  the  animals  is  alleged 
to  be  coMiphite.  In  another  aspect,  the  alleged  ownership  is  stated  as 
a  right  to  have  and  enjoy  the  usufruct  of  these  seal  herds,  for  the  sup- 


lli95  M 


17 


■i 


1 


ri 


18 

port  of  a  l(>p:itlniatc  indintry  established  by  tlie  Uiiiteil  States  on  tlio 
is'.iiids  olSt.  Paul  and  St.  Uoorj-o,  in  IJoring  Sea. 

Two  distinct  "cases"  are  thus  i>resented  to  tlie  Tribunal  of  Arbitra- 
tion for  consideration  and  decision,  and,  wliile  tliey  are  notcitnsolidated, 
as  cross  actions  are  often  set  down  by  tlie  courts  as  comprising  one 
case,  tliey  are  to  be  heard  at  the  same  time  and  the  same  evidence  nniy 
be  used. 

Each  "case"  must  stand  upon  its  own  nierits,  and  it  does  not  neces- 
sarily result  that  a  decision  in  favor  of  either  Government  upon  the 
ease  presented  by  it  is  a  denial  of  all  that  is  claimed  in  the  case  of  the 
other  (jovernment. 

While  the  award  to  bo  nmde  by  the  Tribunal  of  Arbitration  may 
allirm  in  wliole  or  in  part  the  claims  so  asserted  by  either  Govern- 
ment, it  is  not  a  tindiiri;-  in  the  mature  of  a  recovery  of  property  or 
jud.ninent  lor  money,  ;is  damages  or  otherwise,  in  favor  of  either  party 
as  against  the  other,  but  is  an  assent  by  botli  to  a  si'ttlenient  of  con- 
troversies between  tliem  in  accordance  with  the  terms  of  the  award 
which  the  Tribunal  of  Arbitration  sh;i11  nialco.  "When  the  award  is 
so  made,  the  result  is  the  same  as  if  both  (jovernments  had  stipulated 
ill  the  Treaty,  in  terms,  that  which  shall  be  expressed  in  tlie  award. 
In  this  sense,  and  to  this  etlec-t,  whatever  shall  be  declared  in  the 
award  will  he  a  Jindiiifi  in  favor  of  both  Govermiinits. 

No  rule  is  given  or  intimated  in  the  treaty  to  indicate  whether  the 
tribunal  is  to  take  the  international  law,  or  a  just  view  of  the  comity 
of  imtions,  01  the  peculiar  relations  of  the  two  Governments  to  this 
subject,  as  a  ;nide  to  their  decisions,  or  whether  the  rigid  rules  of  law, 
or  equitable  considerations  are  to  govern,  and  whether  the  tribunal  is 
held  to  an  unbending  rule  of  law,  or  whether  there  are  exceptions  to 
it  growing  out  of  long  usage  or  governmental  necessities  which  should 
qualify  the  right  claimed  by  either  party. 

Another  important  consideration  was  in  view  when  the  treaty  was 
made,  namely,  the  necessity  for  a  declaration  on  their  Dart,  reaching 
beyond  the  mere  question  of  the  interests  of  the  United  States  and  the 
subjects  of  Great  liritain  in  the  Alaskan  herd  of  fur-seals,  that  the 
ultinmte  assertion  of  governmental  control  over  the  subject  by  all  the 
countries  to  which  fur-seals  lesort  in  their  breeding  season  should  be 
established  by  the  consent  of  the  United  States  and  Great  Britain. 

It  was  a  just  expectation  that  all  such  countries  would  find,  in  the 
results  of  this  investigation,  suiJicieut  reasons  for  adopting  the  rules, 


i!:  'iM 


I  on  tl>c 

Vrbitra- 
Iwliiti'd, 
iing  ono 
nco  may 

)t  iieces- 
IM)!!  the 

5C  of  till) 

Lion  may 

Goveiii- 
i>lierty  or 
licr  party 
,t  of  con- 
lio  award 

award  i« 
itii)ulated 
w  award, 
ed  in  the 

>tlior  the 
ic  oomity 
;s  to  this 
cs  of  hiw, 
ribunal  is 
'ptions  to 
jh  should 

rcaty  was 
reaching 
'8  and  the 
that  the 
"Tby  all  the 
llionld  be 
ntain. 
[d, in  the 
llie  vales, 


19 

or  iH-inoiples,  tliat  this  tribunal  wonkl  establish  for  the  protection  of 
fur  seals. 

Tlie  destruction  of  the  fur-seal  species  in  the  stuithern  heniisidicre, 
in  a  commercial  sense,  had  already  resuUed  frout  indiscriminate 
slau<>hter  on  land  and  s«'a.  Tlie  slau},'liter  had  liet'u  coiiductcd  as  a 
matter  of  right  upon  tlie  idea  that  none  of  those  countries  had  treated 
the  fur-seals  as  (hnnestic  animals,  or  animals  that  were  attached  to 
the  soil,  or  as  domesticated  animals  entitled  to  protection  as  pntperty, 
but  had  permitted  them  to  be  treated  as  wild  animals,  subject  to  cap- 
ture by  everyone  at  his  pleasure.  The  i)eo|»lo  of  the  United  States 
and  of  Camida,  and  of  many  other  countries,  had  ext'iciseil  this 
assumed  right  of  cai>ture  of  fur-seals  in  the  Antar«'tic  Seas  until 
within  a  recent  period. 

After  the  southern  herds  had  been  virtiuilly  destroyed,  the  coloniza- 
tion of  Europeans  in  extreme  southern  latitudes  led  to  theinvestigation 
of  this  subject  and  the  enactment  of  laws  for  the  prote«-tion  of  fur- 
seals  in  the  hope  that  their  nund)er8  couhl  be  thns  n  tored.  These 
eflorts  are  most  noteworthy  in  the  liritish  colonies  of  ^'cw  Zealand  and 
the  Cape  of  Good  Hope.  These  legislative  ]>rovisions  were  tentative 
rather  than  conclusive  in  their  operation  upon  the  right  of  pelagic 
hunting,  within  the  pres«',ribe,d  limits  of  protection,  by  the  people  of  for- 
eign countries.  While  Ibreigners  were  included  in  the  general  terms 
of  the  statutes  enacted  to  protect  fr.r-seals,  room  was  left  for  the(pu^s- 
tion  whether  they  could  be  rightfully  included  within  the  protection  of 
the  international  law  if  the  pelagic  hunters  chose  to  make  objection. 
In  the  absence  of  such  statutes,  the  right  of  pelagic  sealing  was  not 
(pu^stioned,  except  in  seas  and  bays  that  were  claimed  as  being  closed 
for  such  purposes,  such  as  Behring  Sea,  the  sea  of  Okhotsk,  and  the 
waters  in  Jind  around  the  Japanese  archipelago. 

By  insisting  upon  peculiar  rights  and  powers  of  protection  over  fur- 
seals  in  such  waters  Itussia  and  Japan  had,  in  a  large  measure,  pre- 
served their  herds  from  destruction.  But  there  was  then,  and  until 
recently,  no  one  to  assert,  in  the  name  of  any  Government,  that  pelagic 
sealing  was  an  invasion  of  national  interests,  or  rights  of  proi)erty,  in 
fur-seals.  The  question  was  not  raised  by  any  serious  dispute,  by  other 
powers,  of  the  right  of  protection  of  fur-seals  as  asserted  by  Kussia; 
and  her  policy  stood  opposed  to  the  alleged  right,  in  a  negative  way 
rather  than  by  an  active  assertion  attended  with  serious  controversy 
or  force.    Sucli  respect  was  paid  to  her  well-known  attitude  on  the  sub- 


20 


Ml 


ject  that  no  occasion  offered  to  test  tlie  qncstion  whctLer  a  riglit  uf 
pelaj;ic  liuntiiig  existed,  nnder  the  laws  of  nations,  which  was  superior 
to  Kussiii's  right  to  protect  the  fur-seals  against  tresjuissers  on  the 
high  seas,  or  within  Bering  Sea,  when  they  were  found  more  than 
3  miles  from  her  coasts  and  islands. 

This  ipiestion  was  never,  in  fact,  raised  in  any  practical  way  as  a 
mattei-  of  international  disi)ute,  until  the  present  controversy  between 
tlie  United  States  and  (Sieat  Britain. 

The  question  is,  therefore,  entirely  new",  withcmt  any  actual  prece- 
dent for  its  control,  and  also  without  analogy  for  its  illustration,  bemuHi; 
no  other  anuiuds  yiehlhuj  ralitable  jjrodiicts  to  commerce  have  the  habits 
of  the  fursr((l,  and  none  are  compelled  by  the  uccetisiticy  of  crtstenre  to 
place  themselves  so  entirchj  tvithhi  ihe  dominion  of  man.  This  award, 
therelore,  dealing  with  questions  tliat  are  entirely  new,  will  complete 
the  treaty  between  these  two  great  powers,  and  establish  between 
them  iixed  rules  of  conduct  in  respect  to  the  protection  and  preserva- 
tion of  fur-seals  in  waters  outside  the  limit  of  the  Jurisdiction  of  the 
respective  Governments.  These  rules  will  be  a  new  compact  ol  inter- 
national agreement,  based  ui\  rights  and  duties  that  are,  as  yet,  without 
accurate  delinition  and  without  regulation. 

The  interests  of  peace  and  good  will  being  the  great  moving  causes, 
and  the  benetit  of  nninkiud  ami  the  requirements  of  humanity  being 
included  in  the  results  of  this  arbitration,  it  is  seen  at  once  that  it  was 
necessary  and  prtq)er  to  entrust  these  great  powers  to  a  Tribunal  ot 
Arbitration  having  very  broad  discretion  and  liberty  of  action. 

The  i»ro|)er  understanding  of  the  scope  and  purpose  of  this  treaty  is 
to  bo  gathered,  also,  from  Mie  diplomatic  correspondence  that  attended 
its  negotiation,  and  from  the  various  ])ropositions  and  agreements  that 
Look  iinal  shape  In  the  text  of  the  treaty. 

Tiie  agreement  between  the  two  Uovernmen  ts  in  the  convention  treats 
the  preservation  and  protection  of  the  seal  herds  in  a  broad  and  rational 
way,  and  assumes  that  both  (lovernmeuts  wi'l  freely  and  cordially 
exercise  their  powers  for  that  purpitse. 

This  is  not  a  controversy  in  which  the  award  will  fix  the  title  to  spe- 
cilic  chattels  in  eillier  of  two  claimants,  or  give  eompiMisation,  in  dam- 
ages, as  for  the  conversion  of  such  chattels.  It  is  not  a  lawsuit 
between  the  United  States  and  (Ireat  Ihitain.  There  are  no  special 
issues  joined  between  them.  All  the  questions  are  i)Ut  to  the  tiibunal 
interrogatively,  and  the  award  will  settle  princii)les  and  regulations 


21 


c  to  spe- 
iii  (lam- 
lawsuit 
special 
tiibunal 
••Illations 


that  will  need  to  be  enforced  by  the  concniTent  action  of  the  two  Gov- 
ernuieiits.  There  can  not  be  any  self-executing  powers  included  in  the 
iiwanl.  The  rights  and  duties  tliat  are  ascevtained  by  the  awan;  will 
remain  to  be  enforced  by  the  sovereign  povvcrs  of  the  Go\ernment8 
concerned. 

The  right  of  property  in  a  herd  of  seals  within  the  meaning  of  this 
treaty  can  not  di^pcnd  on  the  (piestion  whother  every  animal  of  the 
herd  was  b(nn  on  land  beh>nging  to  t!ie  (daimant.  If  this  question 
ccmld  arise,  in  any  practical  sense,  it  could  oidy  arise  between  IJussia 
or  Japan  and  the  United  States,  and  not.  between  (Jreat  Ibitain, 
claiming  no  seal  hei'ds.  and  the  United  States,  that  claims  a  herd  that 
habitually  resiuts  to  the  Pribilof  Islands.  The  questions  submitted  in 
this  treaty  for  arbitration  do  not  hinge  npon  the  place  of  initivity  of 
individual  seals,  but  relate  to  those  seals  that  report  habitually  as  herds 
to  the  islands  of  the  United  States,  and  they  turn  npon  that  fact  as  to 
their  identification.  Tiiis  qn^stion  of  the  intermixing  of  the  lieras 
with  those  of  Itussia  was  not  raised  in  the  correspondence  that  led  up 
to  this  treaty,  nor  is  it  referred  to  in  the  treaty,  unless  it  is  included  in 
the  inquiry  as  to  the  right  of  proi)erty  Iti  the  seals.  Tliat  inquiry  r«'lates 
to  the  right  of  pro])erty  in  the  seals  in,  or  resorting  to,  liering  Sea, 
without  reference  to  the  ])lace  of  their  nativity.  If  they  have  that 
habit,  Great  Jiritain  aiul  the  United  States  have  agreed  in  this  treaty 
that  such  a  resorting  to  liering  Sea  is  the  fact  that  identities  them  as 
the  subject  of  the  award  to  be  rendered  in  this  case. 

If  the  award  is  that  the  United  States  have  a  property  in  the  seals 
so  resorting  to  Bering  Sea,  or  found  in  that  sea,  it  fully  covers  the 
question  that  the  Arbitrators  are  required  to  settle  on  the  subject  of 
property  in  seals.  If  there  are  other  questions  beyond  this  as  to 
the  title  of  the  United  States  to  individual  seals,  while  living,  the 
decision  of  them  does  not  fully  disjxjse  of  any  right  claiui'd  by  Great 
Britain  to  kill  them  when  found  singly  <u'  in  snnill  jiartit  'ar  out  in  the 
ocean;  nor  will  it  diminish  any  right  claimed  by  the  U.iiied  States  to 
protcctand  preserve  them  it  they  can  be  idcntilied  as  belonging  to  the 
Alaskan  herd,  though  they  may  have  been  born  upon  itussian  soil. 

All  the  rights  dainu'd  by  the  United  States  in  this  treaty  relate  to 
the  protection  and  ]>i('S('rvation  of  the  lives  of  seal  herds.  All  the  rights 
claimed  by  Great  Britain  and  so  submitted  for  arbitration,  relate  solely 
to  the  right  of  the  destruction  of  individual  seal  life  in  order  to  secure 
the  pelts.    There  is  no  right  of  property  in  any  single,  liiuny  seal, 


22 


iri 


N 


,\    '  n 


wlietlioi  it  is  found  on  sliore  or  swimming  in  tlie  sen,  tliafc  is  in  contro- 
versy between  these  Powers  under  the  provisions  of  this  treaty. 

The  controversy  submitted  to  tlie  Arbitrators  is  in  respect  to  the 
preservation  of  an  entire  body  of  fur-seals.  It  is  impossible  that  the 
Arbitrators  could  declare  in  favor  of  Great  Britain,  on  the  case  here 
presented  and  upon  the  questions  submitted  in  the  treaty,  that  living 
seals  found  at  sea  are  the  property  of  that  Government  or  of  its 
subjects. 

Tlie  case  submitted  by  Great  Britain  is  a  general  and  special  denial 
of  all  property  in  seals  until  they  are  MUed.  But  the  Arbitrators  can 
make  an  award  of  the  "  rights  of  property"  in  a  herd  of  living  seals  to 
the  United  States,  bacause  such  rights  are  included  in  the  submission 
and  are  claimed  in  the  case  of  the  United  Slates. 

The  United  iJtates  claim  the  property  interest  in  the  seals  under 
tins  arbitration,  not  for  their  justification  in  destroying  them  at  sea  or 
on  the  land,  but  for  the  sole  purpose  of  protecting  them  against  pelagic 
hunting,  while  Great  Britain  denies  all  such  property  rights  until  the 
seals  are  killed,  and  daiuis  the  light  to  kill  them  anywhere  that  a 
British  ship  can  lawfully  go.  And  the  treaty,  being  framed  to  settle 
these  claims,  on  its  face  admits  than,  if  the  seals  resort  to  Bering  Sea, 
that  fact  presents  fully  and  sufficiently  the  (luesticui  of  the  property 
right  on  which  the  claim  of  the  United  States  to  protect  and  preserve 
the  seals  is  to  be  founded,  and  leaves  the  question  to  be  settled  by  the 
Arbitrators  v/hether  iheio  is  vested  in  the  United  States,  as  l)etween 
these  parties,  a  right  of  property  in  the  seals  that  are  in,  or  habitually 
resort  to  Bering  Sea. 

The  distance  of  150  mi'es  from  the  eastern  coasts  of  the  North  Pacific 
Ocean  is  the  extreme  limit,  to  the  westward,  of  pelagic  hunting  in  that 
l)art  of  the  ocean  that  l)orders  on  the  iS'orth  American  continent. 

IJetween  February  and  -June,  when  the  seals  are  approaching  I'cring 
Sea,  the  Japanese  and  llussian  Iierds  are  moving  along  the  coasts  of 
Japan  and  Itussia,  not  less  than  G,0(U)  miles  away  from  the  Alaskan 
herds.  If  any  vStray  Russian  or  Japanese  seals  have  found  their  way 
across  the  Pacific  Ocean  to  the  American  coast  and  into  the  Alaskan 
herd,  that  fact  could  not  atfect  any  riglit  of  property  that  the  United 
States  may  have  in  the  body  of  the  herd.  And  when  that  right  of 
l)roperty  is  asserted  for  the  protecition  and  preservation  of  the  estrays 
it  is  sufficient  to  justify  all  proper  efibrts  and  force  that  may  be  refpiisite 
to  that  end.    Even  tliough  Russia  or  Japan  may  have  a  higher  property 


23 


contro- 
>ty. 
to  the 
liat  the 
ise  here 
it  living 
'  of  its 

I  denial 
ors  can 
seals  to 
>miasion 

s  under 
it  sea  or 
t  pelagic 
L;:>til  the 
B  that  a 
to  settle 
ing  Sea, 
jroperty 
)reserve 
d  by  the 
between 
ibitually 

ii  PacilU', 
L'  in  that 
it. 

[>  IJciing 
•oasts  of 
Alaskan 
jieir  way 
Alaskan 
p,  United 
|right  of 

estrays 
[o(|nisite 

)roi)erty 


right  than  that  of  the  TJnited  States  in  individual  seals,  yet,  if  their  seals 
are  gone  estray  and  are  found  iu  tlie  Alaskan  herds,  tlio  United  States, 
if  tiiey  own  those  herds,  or  liave  the  power  to  protect  them,  may  also 
hiwfuUy  and  justly  protect  tlie  estrays  agaiust  everybody  excei)t  the 
owner. 

Two  questions  of  right  are  presented  in  point  o  of  Article  VT,  viz: 
Tlio  right  of  property  in  the  fur  seals  and  the  right  to  protect  tlieni. 
Tliese  rights  are  not  identical  under  fill  circumstances. 

The  right  to  protect  property  may  exist  in  one  who  neither  has  nor 
claims  to  have  any  absolute  ownership  of  the  property,  and  this  right 
has  a  peculiar  force  and  value  on  the  high  seas,  whei  e  the  exi>()sure  of 
property  to  destruction  is  great  and  the  persons  are  few  who  may  be 
able  to  protect  and  preserve  it.  The  right  to  i)rotect  property  is  an 
element  of  its  ownership,  bnt  that  right  does  not  always  depend  on 
ownership.  In  this  treaty  care  is  taken  to  submit  to  the  Arbitrators 
the  sei)arate  rights  of  property  and  of  protection  as  to  the  seals  in  or 
resorting  to  Behring  Sea. 

It  must  be  admitted  that  these  questions  in  all  their  bearings  are 
entirely  new.  It  is  their  novelty  tliat  has  led  to  this  Arbitration.  If 
they  had  been  capable  of  solution  under  the  rules  and  precedents  of 
international  law  it  must  be  assunuMl  that  two  great  (Jovernments, 
equally  desirous  to  protect  and  preserve  the  fur-seals,  would  have 
readily  agreed  as  to  which  of  them  was  (!harged  with  oi  ntitlcd  to  per- 
form that  duty.  In  the  absence  of  such  rules  and  precedents  of  inter 
natioiml  law  it  was  wise  and  just  to  submit  tIles(^  <iuestions,  as  new 
ones,  to  arbitration. 

The  fact  that  both  Governments  are  required  by  the  treaty  "to 
coJiperate  in  securing  the  adhesion  of  other  Powers  to  such  Ifegulations" 
as  shall  be  established  by  the  tribunal,  is  an  indication  that  is  really 
conclusive  of  the  fact  that  they  both  expected  that  the  awai'd  might  be 
based  on  now  principles  or  on  newly  stated  exceptions  to  old  rules. 
If  the  award  could  not  properly  be  based  on  well  settled  ])rincii»les  of 
international  law,  the  reason  for  securing  the  adhesion  of  other  powers 
would  bo  (tbvious,  whereas  that  would  bo  an  unnecessary  act  if  the 
award  could  be  based  only  ujion  the  (concrete  principles  of  international 
law,  f(U'  other  nations  must  be  understood  as  knowing  and  abiding  by 
the  international  law.  Why  should  tlusy  be  asked  to  give  their  adhesion 
to  an  award  that  would  hold  the  United  States  and  Great  Uritaiu  only 
to  a  faithful  observance  of  international  lawf 


24 


r  ZJ 


This  is  a  controversy  between  two  Govcrmnents  that  hold  a  peculiar 
relation  to  the  fur-seals  in  the  eastern  waters  of  the  North  Pacific 
Ocean.  The  peculiarities  of  that  situation  nnist,  largely,  control  or 
modify  the  equitable  rights  of  the  parties  in  their  dealings  with  the 
subject  and  in  the  establishment  of  regulations  to  secure  their  obedi- 
ence to  tlie  rules  of  right  and  justice  that  pervade  all  laws. 

The  two  Governments  resorted  to  arbitration  for  the  peaceful  settle- 
ment of  their  controversy,  because  the  strict  and  unbending  rules  of 
international  law,  or  their  meager  treatment  of  such  subjects,  were  not 
equal  to  the  emergency  of  the  case,  nor  oftVred  a  precedent  for  the 
satisfactory  adjustinentof  the  right  claimed  by  the  United  States.  The 
settlement  of  this  matter  does  not,  necessarily,  establish  any  rule 
of  international  law,  or  dccilare  any  such  rule.  It  will  estabhsh  a 
rule,  inter  partes,  which  they,  by  agreement,  nuiy  rescind  at  pleasure. 
It  can  only  become  a  rule  of  international  law  by  the  general  adliesion 
of  other  powers. 

So,  I  hold  that  the  duty  is  included  within  the  scope  of  the  powers 
of  this  tribunal  to  determine  what  are  the  Just  and  equitable  powers 
and  rights  of  the  resi)ective  Governments  that  should  be  exercised 
severally,  or  concurrently,  in  maintaining  and  executing  the  avowed 
purpose  of  both,  to  protect  and  preserve  the  fur-seals.  The  question 
of  the  right  of  property,  or  protection,  has  this  relation,  and  none 
other,  to  the  great  and  novel  subject  submitted  to  this  tribunal. 


i\    \ 


,  pconliar 
li  Pacific 
)iiti'ol  or 
with  the 
lir  obedi- 

'ul  sottle- 
lulos  of 
were  not 
t  for  the 
tes.  The 
any  rule 
tabU-sli  a 
ph>as\ire. 
adliesion 

e  powers 
le  powers 
exercised 
e  avowed 

question 
iiul  none 

il. 


OPINION  DELIVERED  BEFORE  THE  TRIBUNAL  OF  ARBITRATION 
BY  SENATOR  MORGAN,  JULY  22,  1893,  AS  TO  THE  PROPER  TIME 
FOR  THE  CONSIDERATION  OF  THE  HISTORICAL  QUESTIONS 
SUBMITTED  TO  THE  TRIBUNAL. 

July  20,  1893,  Mr.  IMorgaii  submitted  the  following?  answers  to  points 
1,  2,  3,  and  4,  of  Article  VI  of  the  treaty,  for  the  consideration  of  the 
tribunal: 

1.  From  the  time  that  Russia  first  discovered  and  occupied  Bohrinp: 
Sea  and  thecoastsand  ishuids  thereof  until  she  ceded  a  portion  thereof 
to  tiie  United  States  she  claimed  tlie  seal  fisheries  in  Behring  Sea, 
and  exercised  exclusively  the  right  to  the  usufruct  and  to  own  the  prod- 
uct of  such  seal  fisheries,  and  to  ])rotect  the  same  against  being  inter- 
fered with  in  those  waters  by  the  people  of  any  other  country;  and  also 
the  exclusive  Jurisdiction  that  was  found  necessary  for  those  ])urposes; 
and  also  the  exclusive  Jurisdiction  to  regulate  the  hunting  of  fur- 
seals  in  those  waters  and  to  grant  the  right  of  hunting  them  to  her 
own  subjects. 

2.  The  attitude  of  Russia  toward  the  fur-seal  fisheries  in  Behring 
Sea,  as  described  above,  being  known  to  Great  Britain,  she  acquiesced 
in  the  same  without  objection. 

3.  The  rights  of  Russia,  as  above  stated,  remained  unaflfc(!t('d  by 
the  treaty  of  1825  between  Russia  and  Great  Britain,  and  were  held 
and  exclusively  exercised  by  Russia  after  the  date  of  said  treaty  as 
they  were  before  said  date.  The  phrase  "Pacific  Ocean,"  as  used  iii 
.said  treaty,  did  include  the  body  of  water  now  known  as  Belning  Sea. 

4.  All  tlie  rights  of  Russia,  as  described  in  point  4  of  Article  VI  of 
the  treaty  of  February  2!),  1892,  passed  unimpaired  by  the  treaty  of 
March  30,  1807,  between  Russia  and  the  United  States. 

The  following  statements  submitted  to  the  tribunal  by  Lord  Ilaiuien 
and  by  Baron  Courcel,  respectively,-  while  coinciding  in  the  same  find- 
ings as  to  the  conclusions  drawn  from  the  facts  of  history,  difler  as  to 
the  facts  upon  which  their  respective  conclusions  are  rested. 


STATEMENT  BY  LORD  HANNEN,  SUBMITTED  JULY  21,  AS  AXSIVERS  TO 
QUESTIONS  CONTAINED  JN  AUTICLE  VI  OF  THE  TREATY. 

To  i]Ucsiion  1. — Russia  never  exercised  exclusive  Jurisdiction  in 
Behring  Sea,  outside  the  ordinary  3-niile  limit.  In  1821  she  asserted 
exclusive  Jurisdiction  over  a  part  of  Behring  Sea,  viz:  For  KM)  miles 
along  its  coasts,  by  imperial  ukase.  But  she  witlidrew  the  assertion 
of  Juiisdiction  ex])ressed  in  the  ukase,  (ui  the  denumd  of  (Jreat 
Britain  and  the  United  States,  auu  never  afterwards  asserted  or  exer- 
cised such  jurisdiction. 

8S 


w^ 


26 

Eussiii never  o:cercisc(l  excliisiv*'  lislits  in  tliosoal  fisliorlesin  Bclirinff 
Sc;i  outside  tlie  iiforosaid  liiiiit.  lii  USUI  she  (liiiiiiied,  by  tin;  iitore^iiid 
HJiase,  exclusive  ii}«lits  of  all  kinds  (as  iiieliided  in  her  claim  of  Juris- 
diction), extendiufi'  for  100  miles  alonjf  the  coasts  of  Heluin^'  Sea;  but 
she  withdrew  the  assertion  on  tlu^  demand  of  Great  Britain  and  the 
United  States,  and  never  afterwards  asserted  or  exercised  such  rights. 

The  only  exclusive  right  which  Russia  subsequently  exen-ised  as  to 
the  sea  was  tW,  ordinary  right  conceded  by  international  law  for  3 
miles  from  land. 

To  question  V. — (Irciit  Britain  never  recognized  or  conceded  any  claims 
of  Kussi;i  of  Jurisdiction  as  to  tiio  seal  tisheries,  ex<!ept  as  ti)  the  ordi- 
nary ;{ mile  limit. 

To  question  H. — The  body  of  water  known  as  Behring  Sea  Wiis  in- 
cluded in  the  phrase  "racilie  Ocean, "as used  in  the  treaty  of  J82r»  be- 
tween (Ireat  Britain  and  Itussia. 

Uussia  neither  held  nor  exercised  any  rights  in  Behring  Sea  after 
the  treaty  of  182."*,  save  only  such  rights  as  were  allowed  to  her  by 
international  law  within  the  ordinary  .'{-mile  limit. 

To  question  I. — That  Russia  having  had  no  rights  as  to  Jurisdictiyn 
or  as  to  the  seal  tisheries  in  Behring  Sea,  except  as  to  the  lands  <'edcd 
and  the  onlinary  3 mile  limit  boidering  tlu^  same,  it  folh>ws  tliat 
no  other  rights  passed  to  the  United  States  under  the  treaty  between 
the  United  States  and  Russia  of  March  30,  18G7. 


STATKMENT  PIti:SEXTEl)  liY  ^iAHOX  DE  COVUCEr,  JULY 22,  IN  ANSWER 
TO  rOINTS  1,  2,  .?,  AND  4  OF  THE  TIIEATY., 

I.  The  exigent  of  anthority  asserted  and  exercised  by  Russia  in 
r>chringSea,  previously  to  the  negotiations  which  led  to  the  (conclusion 
of  the  treaty  of  February  1<!-1.*S,  182"),  between  ]lussia  and  Great 
Ih'itain,  does  not  ajtpear  with  historical  certainty,  but  it  results  from 
a  dispat(rh  of  Count  iS'esselrodi^  to  Count  Lieven,  in  date  of  St.  Peters- 
burg, the  2(tth  of  June,  1823,  communicated  to  the  FiOndon  cabinet  on 
tlu^  itth  of  August  ensuing,  that  the  surveillance  of  the  commanders 
of  the  Inijierial  Russian  navy  was  to  be  exercised  henceforth,  under 
their  instructions,  in  the  region  of  Behring  Sea  over  an  extent  of  water 
tintt  siionld  be  within  cannon  shot  from  siiore;  and  although  those 
instrucitions  were  stated  as  being  jtrovisional  in  the  dispatch  of  Count 
>s'esselrode,  it  does  not  api)ear  tliat  since  that  time  up  to  the  time  of 
the  cession  of  Alaska  to  the  Unit«Ml  States  the  Imperial  Government 
of  Russia^  exercised  or  asserted  in  Beliring  Sea,  outside  of  the  limit 
albr«!sai(l,  any  exclusive  Jurisdiction  either  of  a  general  chaiacter  or  in 
connection  with  the  seal  tisheries, 

II.  Great  IJritain  has  not  n'cognized  or  com-eded  any  Jurisdiction  of 
Russia  as  to  seal  tishery  beyond  the;  limit  of  territorial  waters. 

Iir.  Tlui  body  of  water  now  known  as  the  lUihring  Sea  wasiiwluded 
in  the  jthrasc^  "  Pacilic  ()((>an,"  as  use<l  in  tlu^  treaty  of  1825  between 
Great  Rritain  and  Russia,  and  after  said  treaty  Russia  neither  held 
n(U"  exercised  in  the  Reining  Sea,  outsi<le  of  territorial  waters,  any 
exclusive  rights. 

I  V.  All  tin'  rights  of  Russia  as  to  the  Jurisdiction  and  as  to  the  seal 
tisheries  in  llehring  Sea  east  of  the  water  boundary  in  the  treaty 
between  United  States  and  K'ussia  of  the  30th  of  March,  18U7,  passed 
unimpaired  to  the  United  States  under  that  treaty. 


Belirinfj 
foresaid 
if  jmis- 
cii;  but 
1111(1  the 
I  rights. 
c(t  as  to 
iiw  for  3 

y  claims 
:.ho  onli- 

wiis  iii- 
ISlT)  be- 

ca  after 
I  her  by 

isdictiun 
(Is  ceded 
)\vs  that 
between 


AXSWJ'R 


'nssia  in 

mchision 

Great 

s  from 

Peters- 

liiiet  on 

maiiders 

,  uiid(^r 

f  \vat(^r 

1  those 

f  ('omit 

time  of 

niiiiciit 

10  limit 

ter  or  in 

'tion  of 

nclnded 
between 
ler  held 
ers,  any 

the  seal 
treaty 
passed 


27 

These  variances,  if  not  disnjjreements,  as  to  the  historicnl  inquiries 
submitted  to  the  tribunal  in  the  first  four  points  of  Arti(!le  VI  of  the 
treaty,  in  my  Judgment,  fnrnish  a  (,'oiiclnsive  reason  in  siii>port  of  a 
motion  I  intend  to  submit  for  the  postponement  of  a  vot(?  on  jioiiits  1, 
2,  3,  and  4  in  Article  VL  of  the  treaty,  until  the  tribunal  shall  have 
reached  a  conclusion  as  to  the  rights  of  the  United  States,  as  to  prop- 
erty and  prot(^etion  in  the  fur-seals. 

On  July  22,  when  the  subject  of  th(i  answers  to  be  made  to  jioints  1, 
2,  3,  4,  of  Article  VI  of  the  treaty,  was  under  consideration,  1  had  tiie 
honor  of  submitting  the  following  motion  and  remarks: 

"I  move  that  no  decision  be  made  upon  the  lirst  four  points  in  Article 
VI  of  the  treaty,  at  this  time,  but  tiiat  this  historical  matter  be  laid 
aside  until  the  tribunal  has  considered  and  decided  the  legal  (piestions 
submitted  for  award  in  the  treaty,  in  whatever  order  may  be  adopted. 
I  will  state  the  grounds  for  this  motion: 

"Prior  to  March  30,  18(17,  Uussia  owned  all  the  coasts  and  islands 
washed  by  the  watei's  of  IJering  Sea,  and  yet  owns  all  west  of  tiie 
water  boundary  fixed  in  her  treaty  of  that  date  with  the  United 
States. 

"Russia  has  the  same  rights  of  Jurisdiction  in  the  western  iiortion  of 
Bering  Sea  that  the  United  States  has  in  the  eiistern  jiortion.  If  we 
could  reach  an  agreement  as  to  what  tliose  rights  are  it  would  b(^  f;ir 
better,  if  it  was  possible,  that  it  should  not  be  forinuhited  into  an  award 
in  the  .absence  of  Itussia  from  this  iiearing. 

"Russia  alone  can  state  what  exclusive  Jurisdiction  she  asserted  iind 
exercised  and  what  exclusive  rights  in  the  seal  fisheries  she  asserted 
and  exercised  in  the  sea  now  known  as  Bering  Sea  prior  to  182"),  or 
since  that  date  and  until  1807,  so  far  as  such  statements  can  allect  or 
describe  her  attitude  as  a  sovereign  with  reference  to  that  se;i  and 
the  surrounding  coasts  and  the  islands  washed  by  its  waters.  Tliesc 
matters  rest  in  intention  and  are  established  by  assertion  and  are 
proven,  where  proof  is  needed,  by  tlui  exercise  of  antlutrity  over 
Behring  Sea  and  its  islands  and  surrounding  coasts,  and,  where  the 
sovereign  rights  of  Russia  are  challenged  and  put  ui)on  trial,  b'ussia 
should  be  ])resent  if  the  decision  is  to  have  any  bearing,  iinmediate  or 
remote,  upon  her  rights  or  any  elfect  on  her  sensibilities,  so  important 
to  bo  regarded  in  tlie  comity  of  nations. 

"Russia  has  retained  rights  and  interests  in  the  fur  seals  and  fislieries 
of  every  kind  iu  the  western  part  of  Bering  Sea  and  on  the  coasts  and 


1  I 


28 


1  *i 


•mi 


islands  thereof,  wTiich  are  the  same  as  to  orijrin,  assertioTi,  and  excr 
dse,  and  as  to  all  sovereign  powers,  as  those  that  are  claimed  and 
exeicised  by  the  United  States.  Russia  is  still  guarding  her  rights 
in  the  form  and  to  the  extent  that  she  is  making  a  (daim  or  assertion 
of  them  with  sedulous  care,  and  Great  Britain  is  actively  engiigcd  in 
treating  with  her  for  the  definition  and  settlement  of  those  rights. 
While  treating  with  Russia  she  is  arbitrating  with  the  United  States 
about  the  identical  questions  that  equally  concern  botii  countries." 

A  main  feature  that  seems  to  control  the  oi)inions  of  the  xVrbitrators 
in  determining  what  are  the  rights  of  the  United  States  is  the  action 
of  Russia,  its  conduct  in  fact,  as  it  is  alleged,  jpro  and  con,  in  fii'st  assert- 
ing, and  then  abandoning  the  assertion  that  Bering  Sea  is  marc 
clausum;  in  issuing  her  ukase  in  1709  and  abandoning  some  of  its  vital 
features  and  adding  others  by  a  later  ukase  in  1821;  in  wiping  out 
all  of  the  pretensions  set  up  in  both  ukases  by  the  treaty  concluded 
with  the  United  States  hi  1824  and  with  (Ireat  Britain  in  1825:  in 
instrn(!ting  her  minister  at  Washington  to  deliver  to  the  United  States 
an  explanatory  protocol,  defining  nu)re  clearly  her  construction  of  the 
treaty  ofl824,  which  instructions  were  violated  under  impressions  made 
upon  him  by  the  Secretary  of  State,  and,  after  this  was  done,  pioceeding 
under  the  text  of  the  treaty  as  if  no  qualifying  statement  would  ever 
be  relied  ui)on  by  Russia;  and  in  renewing  her  charter  to  the  Russian 
American  Company  in  1831  with  the  same  exclusive  privileges  as  were 
granted  to  it  in  1821.  In  the  opinions  of  the  arbitrators,  now  rtelivercd, 
these  questions,  so  closely  related  to  the  conduct  of  liussia  for  a])eriod 
ifttle  short  of  a  century,  are  dealt  with  and  are  to  be  decided  by  this 
tribunal. 

Whether  Russia  had  any  right  under  international  law,  or  any  other 
huv,  to  assert  and  exercise  exclusive  lights  or  exclusive  jurisdiction  in 
Bering  Sea,  can  not  alter  the  fact  that  she  dhl,  or  did  not,  assert  and 
exercise  them.  Neither  can  these  facts  be  altered  by  Russia's  con- 
structive modiflcation  or  abandonment  of  the  attitude  she  iiad  previ- 
ously hekl  to  these  subjects.  The  only  question  is,  what  did  Russia 
intend  to  asseit  in  respect  to  these  matters,  and  whether  she  executed 
that  intention  in  dealing  with  these  subjects.  In  the  oi)inions  deliv- 
ered, strict  history,  as  to  facts,  seems  to  have  received  a  coloring  of 
legal  and  diplomatic  opinion  in  the  effort  to  ascertain  what  Russia  did 
and  intended  to  do,  by  first  ascertaining  what  it  was  her  duty  to  do 
under  the  interuational  law  and  the  comity  of  nations. 


29 


niid  excr 
iined  aiul 
liei-  rights 
■  assertion 
ugiiycd  in 
ISO  riylits. 
ted  States 

I  tries." 
.ibitrators 
the  action 
ii"stassei't- 
a  is  marc 
of  its  vital 
vipiii{j;  out 
concluded 

II  ISii;-):  in 
ted  States 
tion  of  the 
uons  made 
nocceding 
vould  ever 

e  Russian 
es  as  were 
delivered, 
r»r  a  jieriod 
ed  by  this 

any  other 
diction  in 
issert  and 
ssia's  coii- 
lad  previ- 
id  Russia 
executed 
ions  deliv- 
)loring  of 
'ussia  did 
luty  to  do 


In  my  judgment,  if  Russia  chose  to  violate  the  iuternational  law  aud 
to  repudiate  all  comity,  her  attitude  was  not  altered  because  it  may 
have  exposed  her  to  unfrieudly  criticism  provoked  by  the  pressure  of 
adverse  interests  on  the  part  of  the  United  States  or  Great  Britain. 
At  all  events,  any  such  departures  of  the  tribunal  from  the  strict  duty 
of  stating  this  history,  conlined  to  the  subject  of  fur  seal  fisheries  in 
Bering-  Sea,  without  reference,  deduction,  conjecture,  opinion,  gloss, 
or  comment,  will  oidy  provoke  the  prom[)t  dissent  of  Russia,  or  will 
cause  Great  Britain  and  the  United  States,  whenever  tlu^r  policies  so 
reciuire,  to  declate  that  our  decision  is  not  warranted  by  the  strict 
nature  of  the  inquiry  submitted  to  us,  and  is  obiter  (lictum. 

I  consider  it  a  happy  circumstance  that  in  the  opinions  delivered 
on  this  subject  there  is  such  contrariety  and  conllict  that,  if  they  aie 
adhered  to,  we  are  obliged  to  show  that  a  majority  of  the  tribunal 
are  unable  to  agree  U[)on  an  identical  answer  as  to  the  historical  facts 
submitted  for  inquiry  aiul  decision  in  the  first  point  and  iu  the  last 
clause  of  the  third  point  of  Article  VI. 

And  inasmuch  as  an  agreement  of  a  majority  of  the  tribunal  as  to 
the  historical  facts  so  required  to  be  stated  is  the  essential  basis  of 
the  decision  of  the  other  matters  presented  in  points  2  and  3,  I  respect- 
fully insist  that  we  have  not  been  able  to  reach  a  decision  u^ion  them, 
and  for  this  reason  a  majority  of  the  tribunal  can  not  actually  decide  the 
inquiry  stated  in  points  1,  2,  and  3  of  Article  VI. 

Tlie  matters  presented  for  historical  inquiry  and  decision  in  points 
1,  2,  3,  and  4,  of  Article  VI,  relate  only  to  a  derivative  right  of  the 
United  States  to  thefurseal  fisheries,  as  they  are  termed,  in  Bering 
Sea,  and  the  exclusive  jurisdiction  over  that  sea  to  control  and  protect 

such  fisheries.  These  questions  are  presented  and  may  be  considered 
and  decided,  upon  the  facts  and  law  that  must  contnd  our  decision, 
under  the  submission  of  questions  of  a  judicial  nature,  in  point  5,  of 
Article  VI,  and  in  Articles  I  and  VII  of  the  treaty.  In  so  consider- 
ing and  deciding  tliein  we  need  fiiul  no  occasion  to  express,  in  our 
award,  any  conclusions  that  may  impinge  upon  any  right  of  Russia, 
or  call  it  in  question,  or  that  may  unnecessardy  wound  her  sensibilities. 
It  may  also  turn  out  that  a  final  award  will  be  reached  as  to  the 
rights  of  i)roperty  and  protection  claimed  by  the  United  States,  or  the 
rights  of  pelagic  sealing  claimed  by  Great  Britain,  based  upon  consid- 
erations entirely  apjirt  from  any  derivative  rights  of  the  United  States 
that  may  have  come  to  that  Goverumeut  from  Russia. 


f^ 


30 


.'(. 


At  all  eveiita,  tlio  (llsufjrcements  already  developed  among  the  incin 
l)crs  of  the  tribunal,  as  to  the  matters  with  which  the  interests  of  Russia 
iue  so  closely  bound  up,  admonish  us  that  we  should  lay  this  matter 
aside  until  we  have  considered  the  subject  before  us  under  Article  I, 
and  i)oint  />  in  Article  Vf,  Article  VJI,  and  any  others  that  open  up  an 
in(iulry  into  the  juridical  features  of  the  questions  that  are  submitted 
to  the  tribunal. 

The  oi>inion  and  summary  of  facts  presented  by  Lord  Ilannen  is  con- 
curred in  by  Sir  John  Tiiompson.  The  opinion  of  Marcpiis  Visconti 
V'cnosta  is  (!()n<'urred  in  by  ^Ir.  (Jram.  These  opinions,  whatever  the 
conclusion.s  of  fact  to  be  drawn  from  them  may  be,  are  not  identical 
in  statement  or  reasoninjj.  In  the  absence  of  copies  of  these  opin- 
ions, I  an)  not  able  now  to  eomi)are  and  contrast  them  as  I  would  feel 
it  my  privilege  to  do.  These  ()i)inions  deal  with  the  rij^hts  and  eon- 
diu!t  of  Kussia  in  ditl'ereiit  lights.  1  do  not  say  that  they  purposely 
(leal  with  the  present  rights  of  Kussia,  but  that  etl'ectis  unavoidable 
if  any  weight  is  to  attach  to  our  findings. 

¥o\xv  Arbitrators  will  agree  upon  these  historical  facts,  if  four 
agree  CO  Lord  ILmnen's  syllabus,  while  three  dissent.  This  is  not  a 
secure  basis  of  historical  decision  of  facts  that  conc^ern  a  living  and 
great  nation  and  her  rights,  in  matters  that  are  now  the  subject  of  her 
anxi(ms  care  that  are  under  diplomatic  consideration  in  correspoiul- 
ence  with  Great  Britain.  An  opposing  view  of  this  history,  presented 
by  me,  has  the  coneurrentie  of  Baron  de  Courcel  and  Mr.  .lustice  Hai-- 
lan,  to  a  considerable  extent.  There  is  a  divided  opinion  in  several 
directions,  and  this  chapter  of  history,  if  it  is  written,  will  go  forth 
encumbered  with  serious  doubts  and  objections. 

After  further  discussion,  the  answers  to  be  made  to  the  first  four 
points  in  Article  VI  of  the  treaty  were  informally  laid  aside  to  enable 
Mr.  Justice  Uariau  to  formulate  his  answers. 


:.;iiM.i 


the  mem 

)f  ItUBSill 

s  matter 
Article  I, 
eii  up  an 
ubmittcd 

>n  is  coii- 
Vist'onti 
tevcr  the 
identical 
lese  opiii- 
mulil  feel 
and  con- 
^nrposely 
avoidable 

,  if  four 
s  is  not  a 
iviny  and 

it  of  her 

respond- 
iresented 

tice  Har- 
aeveral 

go  forth 

first  four 
to  enable 


THE  TRTHUNAL  HAVINO  AOllKED  TO  CONSIDER  THE  ITRST  FOl'U 
POINTS  STATED  IN  AUTIOI.E  VI  OF  THE  TKEATY,  IN  CONNECTION, 
AS  A  GROUP  or  QUESTIONS,  SENATOR  MOIKtAN  SUIJMIITED  HIS 
VIEWS  OF  THE  CLAIMS  OF  RUSSIA,  AND  OF  THE  UNITED  STATES 
DERIVED  FROM  RUSSIA,  UNDER  THE  TREATY  (>F  1S(J7,  AS  THE  SAME 
ARE  PROPOUNDED  IN  THE  TJiEATY  OF  185)2  IN  THE  WORDS  FOLLOW- 
ING: 

1.  Whatexclnsive  Jurisdiclion  in  theseanow  known  as  Tiering  Sea, 
and  what  exclusive  rights  in  the  seal  lislicrics  therein  did  Ifnssia  as- 
sert and  exercise  prior  and  up  to  tlie  time  of  the  cession  of  Alaslia  to 
the  United  States? 

2.  How  far  were  those  claims  of  Jurisdiction  as  to  the  seal  fisheries 
recognized  and  conceded  by  Great  Britain? 

3.  Was  the  body  of  water  now  known  as  the  lij'hring  Sea  included  in 
the  phrase  •'Pacific  Ocean,"  as  used  in  the  treaty  of  l.S2o  between 
Great  Britain  and  Bussia;  and  Avliat  riglits,  if  any,  in  tlK^Jeliring 
Sea  were  held  and  exclusively  exercised  by  Bussia  after  said  treaty? 

4.  Did  not  all  the  rights  of  Bussia  as  to  jurisdiction  and  as  to  tlie 
seal  fisheries  in  Behring  Sea  east  of  the  water  boundary  in  tli(^  treaty 
between  the  United  States  and  Bussia  of  the  ."iOth  March,  bSG7,  i)ass 
unimpaired  to  the  United  States  under  that  treaty? 

As  the  tribunal  seems  to  agree  unanimously  in  giving  an  affirma- 
tive answer  to  the  fourth  point  I  will  not  discuss  it. 

A  like  unanimity  seems  to  exist  as  to  the  ansAver  to  the  first  inquiry 
under  question  3,  which  makes  it  unnecessary  that  1  should  comment 
upon  that  question. 

All  the  questions  submitted  under  the  four  points  of  Article  VI  are 
historical  rather  than  judicial  in  their  character  as  to  tlie  facts  to  be 
ascertained  and  as  to  the  conclusions  to  be  based  u]ton  them,  except 
the  question  jiresented  in  the  second  point,  which  I  consider  a  mixed 
question  of  law  and  fact.  It  is  upon  this  view  of  the  duty  of  the 
tribunal  in  the  consideration  of  these  questions  that  my  o})inions  are 
rested. 

The  situation  of  the  western  and  northwestern  coast  of  North  Amer- 
ica in  1824  was  practically  that  of  an  unoccupied  and  uninliabited 
country  to  tlie  north  of  Paget  Sound.  A  few  scattered  tribes  of 
Indians  inhabited  the  vast  roach  of  coast,  from  San  Francisco  to  the 

SI 


w 


I 


82 

frozen  ocean,  not  less  tlian  4,000  miles  in  IcnjjMi.  The  clninis  of 
(Ireat  IJiitiiin,  Itussin,  Spain,  and  the  United  States  to  certain 
l>onndarie8  alon^  tliis  jiT^^Jit  reacih  were  based  on  allej;ed  discoveries 
and  occnpation,  all  of  tlio  most  indefinite  eharactei',  and  all  disputed, 
except  that  Knssia  held  and  occnpied  the  islands  and  coasts  on  all 
sides  of  Berinj;  Sea  and  this  claim  was  not  dispnted  by  any  country. 
This  claim  was  tlins  held  and  recoj;ui/.ed  for  many  years  belnie  ISL'l, 
reachinj^'  back  to  the  discovery  and  exploration  of  ISeriny  Sea. 

The  interest  of  Russia  iu  these  wild  and  inhospitable  rej^ions  was 
iH)t  a;>ricultural,  for  they  are  unfit  for  such  pursuits.  It  was  not  an 
ambitious  desire  lor  territorial  aggrandizement  on  the  American  con- 
tinent, for  llussia  took  no  steps  to  increase  her  population  there 
beyond  the  numbers  necessary  to  secure  and  handle  the  fur  trade;  and 
when  she  fou ml  it  inconvenient  to  incur  the  expense  of  },'overning  a 
cohmy  so  far  away  from  her  capital,  that  yielded  so  small  a  revenue, 
she  sold  all  her  possessions  and  dominion  in  that  region  east  of  170'^ 
of  west  longitmle  to  a  power  that  had  always  been  friendly  and  was 
not  in  any  sense  her  rival. 

Fishing  was  not  so  profitable  in  Bering  Sea  as  to  indu(!e  fishermen  to 
encounter  the  unpleasant  and  short  suuuner  season  when  it  was  prac- 
ticable to  fish  there  and  establish  any  regular  business  in  taking  fish. 
The  markets  were  too  distant  to  Justify  them  to  transport  their  catch 
fresh  on  ice,  and  there  was  not  sufllcient  sunshine  to  enable  them  to 
properly  cure  the  fish.  In  consequence  the  business  of  Jinhing  was 
never  permanently  established  in  Bering  Sea,  and  is  not  until  this  time. 

Russia  directed  the  energy  and  capital  of  her  people  to  the  collection 
of  furs  as  the  only  really  valuabhs  industry  in  that  region,  and(;reated 
monoindies  in  their  favor  and  gave  them  large  powers  of  legislation, 
all  directed  to  the  same  end,  and  all  protected  by  her  naval  power  in  a 
thoroughly  systematic  and  effectual  way. 

These  privileges  were  retained  and  exercised  exclusively  by  Bus- 
sian  subjects  under  her  laws  until  the  Alaskan  region  was  sold  to  tl... 
United  States  in  18G7,  with  all  the  rights  and  dominion  that  Russia 
had  therein.  In  order  to  extinguish  in  tluit  region  all  claim  of  iMghts 
existing  under  Russian  authority  it  was  stipulated  in  the  treaty  of 
cession  that  all  former  grants  of  exclusive  privileges  to  any  of  the 
Russian  subjects  should  be  abrogated. 

It  was  in  pnrsuance  of  the  same  authority  and  manifestly  for  these 
reasons  that  the  right  of  trading  Avith  the  natives  and  of  taknig  and 


014:         '\'i- 


iini8  of 
certain 

loverioH 

s  on  all 
:ountry. 
re  1824, 

• 

)n8  was 
\  not  an 
can  con- 
Ill  tlicvo 
nle;  and 
erning  a 
levenne, 
t  of  170^ 
and  was 

evnien  to 
ras  pvac- 
iiig  lisli. 
ir  catch 
thciii  to 
ing  was 
liistiiue. 
■oUci'tion 
I  created 
i.slation, 
wer  in  a 

Iby  llns- 
Id  to  tl.c 
Jinssia 

)f  IM gilts 

treaty  of 
|y  of  the 

I'or  these 
bug  and 


88 

collecting  furs  was  withheld  from  the  concessions  nuule  by  Ilimsia  to 
Great  Britain  and  the  United  States  in  1824  and  18Ur). 

In  accordance  with  what  was  then  the  practice  of  the  great  powers  as 
to  the  right  of  declaring  tlio  closure  of  extensive  areas  of  sea  as  territo- 
rial apinu'tenances,  Kiissia  claimed  that  Hcliring  Sea  was  vmre  clausinn, 
and  ill  insult  ice  this  claim  was  carried  into  ell'ect  «s  to  the  control  of 
the  fur  trade. 

Iler  people  did  not  hnnt  whales  at  that  perird  to  any  great  extent, 
nor  did  they  conduct  lishcries /or  commercial  jfvrposeti.  It  was  the 
donble  pnrpose  of  iirotei^ting  her  far  trade  ami  yet  permitfing  wlialing 
and  other  llshing  within  safe  limits  that  caasedthe  Kiiiperor,  Ah^xan- 
der  I,  to  issue  the  nkase  of  1821.  The  whalers  and  lisherinen  had 
begun  to  deal  with  the  natives  for  furs  and  to  catch  8<  als  in  Behriiig 
Sea.  Iliisaia  resented  this  as  a  wrong  and  an  invasion  of  her  territorial 
rights,  and  the  nkase  was  issued  to  prevent  its  increase  or  continuance. 

The  ordinary  three-mile  limit  was  as  fully  recognized  then  as  it  has 
been  since  that  time,  generally,  as  to  coasts  bordering  the  open  ocean, 
or  even  more  fully  recognized,  lint  Knssia  paid  no  attention  to  it  in 
Bering  Sea,  and  for  her  own  security  in  respect  of  her  only  industry 
in  those  waters — the  fur  trade — and  to  kcej)  dow  ii  insurrection,  she 
fixed  a  line  of  proliihition  to  navigators  at  100  Italian  miles  from  her 
VAK\....  .11  doing  this,  and  in  opening  IJering  Sea  to  whalers  and 
flshermeii  and  otlier  navigators  in  the  parts  not  included  in  the  100- 
mile  limit,  she  asserted  and  exercised  an  exceptional  jurisdiction  over 
that  sea.  and  claimed  that  her  power  extended  over  the  entire  sea, 
but  waived  her  rights  at  the  distanceof  over  100  miles  from  the  coasts. 

In  I7!M)  the  interest  of. Russia  and  her  subjects  in  the  fur  trade  had 

become  so  imiiortant  that  on  July  8,  1700,  nearly  twenty-tive  years 

before  the  date  of  tlu^  treaty  with  the  United  States  of  April,  5-17, 

1824,  the   Emperor   Paul    issued    his    ukase,    in  which  he  declared 

that— 

The  benefits  and  advantages  resulting  to  our  Empirofrom  hunting 
and  trading  carried  on  by  our  loyal  subjects  in  the  northeastern  seas 
and  along  tlie  (toasts  of  America  have  attracted  our  Imperial  attention 
and  «;oiisideration;  therefore,  having  taken  under  our  immediate  ju'o- 
teclion  a  company  organized  tor  the  above-named  luirpose  of  carrying 
on  hunting  and  trading,  we  allow  it  to  assume  the  appellation  of 
"Russian  American  Company,  oi)erating  under  our  highest  protection;" 
and  for  the  purpose  of  aiding  the  company  in  its  enterprises,  we  allow 
the  commanders  of  our  land  and  sea  forces  to  employ  said  forces  in  the 
company's  aid  if  occasion  requires  it,  while  for  further  relief  and  assist- 
ance of  said  company,  and  having  examined  their  rules  and  regulations, 

11495  M 3 


34 


1  ^ 
lU 


h,i. 


i 


tiiges  rosuUiiij? 
oil      *      *       * 


we  liorftby  dccl<are  it  to  be  onr  liigliest  Tini>or?al  will  to  f:^aTit  to  this 
company  tor  ii  period  of  twenty  years  the  Ibllowing  rights  and  privi- 
lof^es: 

J.  liy  the  right  of  discovorj'^  in  i)aRt  times  by  Eussian  Tiavigators  of 
tl»e  north  western  i)art  of  America,  beginning  from  tlie  fifty-iiftli  degree 
of  north  latitnde  an<l  of  the  cliain  of  islands  extending  from  Kam- 
tchiitka  to  the  north  to  America,  and  southward  to  Jai)an,  and  by  right 
of  ])Ossession  of  tlie  Siime  by  Kussia  we  most  graciously  penult  the 
company  to  hiivr  the  use  of  all  hunting  grounds  and  establislnnents 
now  existing  on  the  noitlu-astern  coast  of  America,  from  the  above- 
mentioned  liltylilth  degree  to  Bering  Strait,  and  also  on  the  Ahnitian, 
Kuriie,  and  other  islands  situated  in  the  Northeastern  Ocean. 

There  could  not  have  been  a  more  distinct  assertion  of  rights  of  sov- 
ereignty and  dominion,  in  virtue  of  discovery  and  possession,  than  is 
made  in  this  State  paper.  N^either  could  it  have  been  more  formally, 
or  completely  stated  that  the  sovereign  will  and  power  of  Kiissia  was 
exerted  by  this  Imperial  ukase  to  secure  to  the  ''Russian- American  Com- 
pany under  (Itussia's)  highest  protection"  ''the  benefits  and  advau- 
*  *  *  from  the  hunting  and  trading  carried 
in  the  northeastern  .seas  and  along  the  coasts  of  Amer- 
ica." There  can  be  no  reasonabJe  doubt  that  this  ukase  covered  Bering 
Sea  and  nil  hunting  and  trading  in  those  waters.  The  rights  conferred 
by  this  ukase  were  sup])orted  by  the  i)ower  of  the  army  and  navy  of 
Russia,  ])ledged  for  that  purpose. 

Tlie  exclusive  character  of  these  rights,  as  to  all  the  world,  is  stated 
in  Article  X  of  the  regidations  eud)odied  in  this  ukase,  as  follows: 

X.  Tlie  exclusive  right  is  most  graciously  granted  to  the  comjiany 
for  a  period  of  twenty  years,  to  use  and  enjoy,  in  the  above-descrilied 
extent  of  country  and  islands,  all  profits  and  advantnges  derived  from 
hunting,  trade,  industries,  and  discovery  of  new  lands,  prohibiting  tlie 
enjoyment  of  thes(>  j)rohts  and  advantages  not  only  to  those  who 
Avould  wish  to  siiil  to  those  countries  on  their  own  account,  but  to  all 
former  hunters  and  tra])pers  who  have  been  engnged  in  this  trade  and 
have  tlieir  vessels  and  furs  at  those  idaces;  and  otiier  companies  which 
may  have  been  formed  will  not  be  allowed  to  continue  their  business 
unless  they  unite  w  ith  the  ])resent  comjiany  with  their  free  consent, 
but  such  ju-ivate  comi)anie.s  or  traders  as  liave  their  vessels  in  those 
regions  can  either  sell  tlieir  jnoperty  or,  with  the  comjtany's  consent, 
remain  until  they  have  obtained  a  cargo,  but  no  longer  than  is  required 
for  the  loading  and  return  of  their  vessel;  and  after  tliat  nol>ody  will 
hi've  any  i)rivileges  but  this  one  company,  which  will  be  protected  iu 
the  enjoyment  of  all  the  riglits  mentioned. 

The  rights  thus  exclusively  granted  relate  to  hvnthifj  and  trading. 
The  rights  of  free  navigation  and  of  fishing  are  not  granted  exclusively 
to  this  company,  but  "  all  profits  and  advantages  derived  from  hmiiing, 
trade,  industries,  and  discoveries  of  now  lauds"  are  so  granted. 


35 


b  to  this 
id  piivi- 

ators  of 
1  (le,i!,ree 
m  Jviim- 
by  risht 
imit  the 
shiiuMits 
e  iibove- 
Ucutian, 

;s  of  sov- 
,  than  is 
formally, 
issia  was 
can  Corn- 
el advan- 
g  carried 
1  of  Auior- 
ed  Bering 
conferred 
I  navy  of 

,  is  stated 

lows : 

comiiiuiy 
described 
•ived  Ironi 
Ibitiiig  the 
hose    who 
but  to  all 
trade  and 
lies  which 
|r  business 
'  consent, 
s  in  tliose 
s  consent, 
|s  required 
f)body  will 
[otected  in 

Id  tradinff. 
Ixdusively 
in  himtiug, 
led. 


That  the  privilege  of  hunting  fur-bearing  animals  in  the  northeastern 
sea,  and  on  land,  was  '-the  exclusive  riglit"  of  the  greatest  inii)ortance 
that  was  granted  in  tliis  ukase  is  made  entirely  ch'ar  in  tiie  prohibi- 
tion stated  in  Article  X  in  these  words,  "prohibiting  Ihe  enjoyment  of 
these  profits  and  advantages  not  only  to  those  wlio  would  wish  to  sail 
to  those  countries  on  their  own  account,  l)ut  to  all  lormcr  Inoitcts  and 
trappers  wlio  have  been  engaged  in  this  trade  and  have  their  vessels  and 
furs  at  those  places." 

This  company  conducted  its  o])eiati()nsin  reference  to  the  fur  trade 
at  great  cost  and  witii  much  piolit  during  the  twenty  years  (»f  its  char- 
tered existence,  and  then  a])plie(l  to  Ilussia  for  a  renewal  of  its  charter 
for  an  additional  term  of  twenty  years. 

The  ukase  of  17!>!)  iras  found  to  he  insiiffieioil  for  the  protection  of 
the  privileges  grantoxl  hy  it,  and  an  additional  ukase  was  necessary 
for  that  purpose,  which  was  issued  Sc]itember  '1.  J821.  There  could 
be  no  need  to  afjain  assort  the  right  of  Rvssia  to  grant  the  e.velusire 
pririlegeto  its  suhjeets  of^^  hunting  and  trading.''''  "  whi(!h  had  been  carried 
on  by  (her)  loyal  subjects  in  the  northeastern  seas  and  along  the  coasts 
of  America"  for  many  years  anterior  to  179{>,  and  for  a  quarter  of 
a  century  since  that  date;  but  Kussia,  Through  its  Emperor  and 
dire<'ting  senate,  in  the  most  solemn  manner,  declared  that  the  free 
right  of  navigation,  which  was  not  restricted  by  the  vlrtse  of  17'!)D,hi\(l 
been  abused,  to  the  detrinu>nt  of  "  the  trade  of  our  subjects  on  the 
Aleutian  Islands  and  on  the  northwest  coast  of  America,  appertaining 
unto  Kussia." 

This  necessity  for  an  additioTtal  ukase  could  luA,  be  expressed  more 
distinctly,  or  more  tersely,  than  it  is  in  the  terms  of  that  ukase,  which 
are  as  folloAvs: 

The  directing  senate  malceth  known  unto  all  men:  Whereas  in  an 
edict  of  Jlis  Imperial  Majesty,  issued  to  llKMliiccting  senate  on  tin", 
4th  day  of  Sei>tember.  and  signed  by  His  lmi)eiial  Majesty's  own  hand, 
it  is  thus  (expressed: 

Observing  from  re])(U'ts  submitted  to  us  that  the  trade  of  our  sub- 
jects on  th(^  Aleutian  islands  and  on  liie  norlhwcst  <'oast  of  Anu'rica 
appertaining  unto  Kussia,  is  subjected,  because  of  secret  and  illicit 
tralhc,  to  oppression  aiul  inqtediments,  and  linding  that  the  i)rinci)>al 
cause  of  these  dilhculties  is  the  want  of  rul(>s  establishing  the  bounda- 
I'ies  tor  navigation  along  these  coasts,  and  the  order  of  naval  comnui- 
nication  as  well  in  thcv^e  places  as  on  the  whole  of  the  eastern  I'oast  of 
Siberia  and  the  Kurile  Islands,  we  have  deemed  it  necesaiy  to  deter- 
mine these  communications  by  specitic  regulations,  which  are  hereto 
attached. 

Jn  forwarding  these  regulations  to  the  directing  senate  we  command 
that  the  same  be  i)ublished  for  universal  information,  and  that  the 
proper  measures  be  take'.:  to  carry  them  into  execution. 


Ir-^ 


» 


m 


!'\ 


36 

Tliat  ulcase  is  rliroctcd  to  the  suppression  of  a  "  secret  .and  illicit 
traffic"  and  "oppression  and  inipediuients"  to  which  the  trade  of  llus- 
sian  subjects  on  the  Aleutian  Islands  on  the  northwest  coast  of 
America  was  subjected.  "The  principal  cause  of  these  difliculties"  is 
stated  in  the  ukase.  It  "is  the  want  of  rules  establish iuj;'  boundaries 
for  navUjatlon  along"  these  coasts,"  not  through  Bering  Sea,  "  and  the 
order  of  naval  coiniiiunication  as  well  in  these  places  as  on  the  whole 
of  the  eastern  coasts  of  Siberia  and  the  Kurile  Islands." 

In  renewing  the  charter  '^f  the  Kussian-Anierican  Company  in  1821, 
all  these  .abuses  were  dealt  with  in  the  ukase,  published  on  September 
7,  18l'1.  That  was  a  complete  code  of  laws  consisting  of  03  sections, 
regulating  and  setting  apart,  as  an  exclusive  aiul  additional  right 
"granted  to  Kussian  subjects"  of  "the  pursuit  oi  commerce,  whaliiu/, 
and  fishery,  and  all  other  industries  on  all  islands,  iiorts,  and  gulfs, 
including  the  whole  of  the  northwest  coast  of  America,"  from  Bering 
Straits  to  the  51°  of  north  latitude,  and  45''  50'  on  the  Siberian  side  of 
Bering  Sea. 

In  this  ukase,  following  this  exclusive  grant  of  rights  and  privileges 
to  Kussian  subjects,  section  2o;-dains  that: 

it  is  thei'efore  prohibited  to  all  f(,;eign  vessels  iiot  only  to  land  on 
the  (ioasts  and  ishiuds  belonging  to  llussia  as  stated  above,  but  also 
to  approach  them  within  less  than  a  hundred  Italian  miles.  Tiie  trans- 
gressor's vessel  is  subject  to  conliscation,  along  with  the  whole  (iargo. 

The  second  chart<'r  of  the  Ilussian-American  (Jompany  was  based 
r.pon  the  ukase  of  1821,  which  was  based  upon  and  amended  the  ukase 
of  1791).    The  lirst  and  second  articles  of  that  charter  are  as  follows: 


1 


I. 

The  company  established  for  carrying  on  indusirios  and  trade  on  tlui 
mainland  of  >!orlliwest  America,  on  the  Aleutian  and  on  tin;  Kurile 
Islands  remains,  as  heretofore,  under  the  highest  protection  of  His 
Imi)erial  iMajesty. 

n. 

It  enjoys  the  ])rivilege  of  hunfing  and  fishing,  to  (ho  exclusion  of  all 
other  iiu.ssian  or  Ibreign  subjects  throughout  the  t<'rritories  long  since 
in  the  possession  of  Russia  on  the  coasts  of  Northwest  America,  begin- 
ning at  ,the  northern  point  of  the  Island  of  Vancouver,  in  latitude  51° 
north,  and  extending  to  Bering  Strait  and  beyond,  as  well  as  on  all 
islands  a<lJoining  the  coast  and  all  those  situated  between  this  coast 
and  the  eastern  shoreof  Siberia,  as  well  as  on  the  Kurile  Islands,  where 
the  comi>any  has  "iigaa'cd  in  Imuting,  down  to  the  south  capeof  the 
Island  IJrupa,  in  latitutle  45"  50'. 


a  illicit 
of  Ens- 

3oast  of 
Itics  "  is 
indavios 
ami  the 
le  whole 

in  1821, 
ptember 
sections, 
al  right 
u'haUii'j, 
1(1  ftuHs, 
I  Bering 
u  side  of 


•rivilegos 


)  laiul  on 
but  also 
lie  trans- 
0  cargo. 

IS  based 

llic  nliaso 

follows : 


[icon  th(i 
|i<>  Kiirile 
11  of  ills 


Ion  of  all 

}iig  since 

la,  begin - 

Itudeoio 

]s  on  all 

his  coast 

s,  where 

l)uof  the 


87 

The  term  "hunting"  in  Article  II  necessarily  indndes  the  same 
"hunting  #  *  #  carried  on  by  our  loyal  subjects //i //tc  mo<'^/»y«67<')'» 
ficas  and  along  the  coasts  of  America"  that  is  reserved,  exclusively,  to 
Russian  subjects  by  the  ukase  of  1799. 

The  right  of  fishing  is  not  mentioned  specifically  in  the  ukase  of 
1799,  for  the  reason,  doubtless,  that  it  then  had  no  importance.  It  is 
specifically  nientioned  in  the  ukase  of  18131,  and  is  theri  in  classed  as 
follows,  viz,  "the  pursuits  of  commerce,  whiiling.  and  fishery,  and  of 
all  other  ••  dustry  on  all  islands,  ports,  and  gulfs." 

In  the  ukase  of  1821  all  these  jiursuits,  including  hiuitiiig  in  the 
northeastern  seas,  are  embraced  in  "tlie  trade  of  our  subjects  (who  are) 
on  the  Aleutian  Islands  and  on  the  Northwest  coast  of  America  apper- 
taining to  llussia,"  are  covered  by  the  protecting  [lower  of  the  liussiau 
Empire.  And  in  order  to  make  the  i»rotection  eflcctiml  the  right  of 
navigation  was  in  that  ukase  restricted  to  100 1'niles  from  the  coasts,  etc. 

In  1824  the  United  States  held  the  Spanish  tide  to  its  possessions 
on  the  I'acilic  coast  north  of  latitude  42°.  and  had  no  other  substan 
tial  claim  to  that  coiist.  In  the  treaty  of  1824  between  tlMj  irnited 
States  and  liussia  nothing  was  settled  that  had  not  bci'ii  claimed  by 
llussia  in  these  two  ukases  of  1799  and  1821,  and  in  Article  I  of  the 
treaty  (the-  rights  of)  "the  respective  citizens  and  subjecfR  of  the  High 
Oonfracting  I'owers"  are  "neither  disturbed  nor  restrained  either  in 
navigiition  or  in  fishing,  or  in  the  power  of  resorting  to  the(!oasts.  upon 
points  that  ihiiy  not  have  l)een  nlready  occupied, /or //if  puvpoxe  of  trad- 
iiuj  with  the  natives,  saving  always  the  restrictions  and  conditions  de- 
termined by  the  following  articles." 

Aiticlcs  2,  3,  and  4  are  as  folio w.s: 

Alll'ICI-E  II, 

With  a  view  of  ])rev(Miting  the  rights  of  navigation  nnd  of  fishing 
exercised  upon  thci  (lieat  Ocean  by  llie  citizens  iiiid  subjects  of  the 
high  contracting  powers  from  b(!coiiiing  tlie  pretext  lor  an  illicit  trade, 
it  is  agreed  that  th(M'itiz«Mis  of  the  I'liiteil  Stiites  shall  not  res(»rt  to 
any  jioiiit  where  there  is  a  liiissiiiii  establishment  without  the  permis- 
sion of  tl;e  gov«n'nor  or  commander;  and  that,  recipiocally,  thir  sub- 
jects of  li.ssiai  sliall  not  resort  without  permission  to  any  establishment 
of  the  United  States  upon  the  Northwest  coast. 

Article  111. 

It  is  moreover  agreed  that  herealtei'  there  shall  not  bo  formed  by 
the  citizens  of  the  IJnited  States,  or  under  the  authority  of  tlu;  said 
States,  any  establishment  upon  the  Noithwcst  coast  of  Ameiicji,  nor  in 


pf 


38 

any  of  tlie  islands  adjacent,  to  the  north  of  fifty- fonr  degrees  and  forty 
niiiiutes  of  norili  latitude;  and  tliat,  in  the  Siinie  manner,  tlieie  sliall 
be  none  formed  by  linssian  .subjeets,  or  under  the  authority  of  liuasia, 
south  of  the  same  paiallel. 

Article  IV. 

It  is,  nevoitheless,  understood  that  during  a  term  of  ten  years, 
eounting  from  the  signature  of  the  ]»resent  eonvention,  the  shiiis  of 
both  powers,  or  which  belon}>'  to  their  eiti/ensor  subjects,  respectively, 
may  reciprocally  frequent,  Avitliout  any  hindrant  e  whatever,  the  intis 
rior  seas,  gull's,  harbors,  and  creeivs  upon  the  coast  mentioned  in  the 
])receding  article  lor  the  purpose  of  fishing  and  trading  with  the 
natives  of  the  country. 

This  treaty  was  designed  to  settle  all  the  questions  involved  in  the 
ukases  of  1799  and  ISlil,  in  which  the  United  States  claimed  any 
interest,  vnder  iuternaiional  law,  iim\  theie  is  no  mention  made  of  any 
change  or  modilication  of  the  ex<!lusive  right  of  the  Kussians  (made  so 
prominent  in  the  ukase  of  1799)  of  "hunting  and  trading  eairied  on 
by  our  loyal  subjects  in  the  northeastern  seas  aiul  along  the  coasts  of 
America,"  except  that  the  right  of  "tiading  \.ith  the  natives  of  the 
country"  is  granted  to  Americans  for  ten  years,  and  after  that  time 
they  "shall  not  resort  to  any  i)oint  where  there  is  a  liussian  establish- 
ment without  the  2)ermistiion  of  the  governor  or  commander.''^ 

Aside  from  the  question  wOiether  "  the  (h'eat  Ocean  "  included  Be- 
ring Sea,  or  is  distinguished  from  it  in  the  treaty  of  IStiJr,  the  right 
of"  hunting  in  the  northea.stern  aeas  and  along  the  coasts  of  America," 
which,  with  the  right  of  trading,  was  considered  so  replete  with  "ben- 
elits  and  advantages  resulting  to  our  empire,"  as  to  be  made  the  sole 
grounds  of  the  ukase  of  179t),  iras  not  touched  by  the  treaty  of  1821 
with  the  United  States,  or  the  treaty  of  1825  with  Great  Britain. 

That  right  stands  to-day  as  a  right  asserted  by  Bussia  and  reserved 
out  of  all  treaties  with  the  Unite<l  States  and  lireat  Britain. 

That  is  quite  a  sufficient  assertion  of  the  riyht,  to  support  a  prcscri2)tive 
title  to  the  fur-hear  in;/  animals  in  Bchriny  iSea. 

The  right  of  "resorting  to  the  coasts,  upon  points  which  may  not 
already  have  been  occupied  for  the  pur])Ose  of  trading"  which  is  agreed 
upon  in  Article  I  of  the  treaty  of  1824  is  altogether  distinct  from  the 
right  of  hnnting  "in  the  northeastern  seas"  or  along  the  coast. 

The  rights  of  "fishing"  and  "hunting"  are  not  anywhere  alluded  to 
in  these  ukases  or  treaties  as  being  tlie  same:  on  the  contrary,  the  right 
of  hunting  is  reserved  to  Bnssian  subjects  "in  the  northeastern  seas 
and  along  the  coasts  of  Anierica,"  while  the  treaty  of  1821  forbids  citi- 


(1  forty 
liu;;.sia, 


I  years, 
^liips  of 
ctivoly, 
he  intc- 
d  iu  tlui 
itU  the 


d  in  the 
med  any 
ie  cf  any 
inade  so 
irvied  on 
(M)asts  of 
iS  of  the 
hat  time 
istablish- 

idcd  Bc- 
le  right 
nievicia," 

th  '•  beii- 
the  sole 
of  1821 

ain, 
reserved 

cscyq)tive 

may  not 
IS  agreed 
from  the 
it. 

illudcdto 
the  right 
tern  seas 
"bids  citi- 


39 

zens  of  the  United  States  from  resortitij?  to  tlie  eoast  of  Kussia  at  any 
point  where  there  is  a  Itussian  establishment  witliout  the  permission 
from  tiio  governor  or  commander.  Tliose  were  the])oints  along  the 
coasts  where  hunting  was  most  i)ro(itable,  where  the  fur-seals  were 
mostly  hunted,  and  whei-e,  for  that  purpo.se,  liussiau  establishments 
were  located. 

If  the  *' fishing"  mentioned  in  the  treaty  of  1824  meant  seal  "hunt- 
ing," why  was  this  "iiuntiiig"  or  "fishing"  forbidden  to  the  people  of 
the  Unite*!  States  at  the  places  where  the  Kussians  found  it  most 
profitable?  The  Indians  at  that  time  hunted  seals  iu  Bering  Sea  out- 
side the  limit  of  .3  miles  from  the  coast,  and  the  Kussians  hunted  them 
on  the  Piibilof  Islands.  Why  should  American  citl/Cns  be  excluded 
from  "hunting"  seals  on  shore  where  the  Russians  had  establishments 
and  yet  be  admitted  to  the  right  of  "fishing"  for  seals  in  the  sea, 
"along  the  coasts"  where  ilio  Indians  "hunted"  them  J  These  words, 
"hunting"  and  "fishing,"  liav(;  (^ach  a  natural  and  clear  signifi<^ati()n, 
which  is  most  strongly  empliasized  iu  these  ukases  and  in  the  treaty 
of  1824  as  being  entirely  distinct,  and  there  is  no  warrant  in  the  con- 
text of  either  of  these  ukases,  or  treaties,  or  in  the  circumstances  that 
led  to  them,  for  construing  "huutiug"  and  "lishiug"  as  identical  or 
synonymous  terms. 

The  ratification  of  the  treaty  of  April  5-17,  1824,  with  Kussia  was 
proclaimed  on  the  12th  day  of  January,  1825.  Until  then  it  was  not 
in  force.  As  early  as  -Tune  12,  1824,  Baron  Tuyll,  Kussiau  minister  at 
Washington,  was  instructed  by  his  Government  "to  tiie  efijecttluit  the 
Northwestern  Coastof  America,  along  the  extent  of  which,  by  the  provi- 
sions of  the  convention,  free  trading  and  fishing  are  permitted  subjects 
of  the  North  American  States,  extends  from  54'^  40'  northward  to 
Yakutat  (Behring)  Bay." 

The  understanding  of  the  treaty  by  Kussia  is  iu  accord  with  the 
policy  stated  in  the  note  of  tlie  minister  of  finaiu.-e  to  J)ire(!tor  Uva- 
rof  of  April  2,  1824,  in  which  it  is  ordered  that  "the  carrying  on  of 
trade  with  foreign  vessels  arriving  tiiere  (liarl)or  of  New  Archangel, 
now  Sitka)  e8tal)lished  regulations  at  one  de-s'ujnated  port.''' 

A  conference  of  Kussiau  notables  was  held  in  St.  Peteisburg  on  duly 
21,  1824,  by  order  of  tln^  Emperor,  to"again  examine"  the  elfect  of  the 
treaty  of  April  5,  1824,  upon  Kussiau  rights  and  interests,  "and  also 
the  means  which  the  Imperial  ministry  thinks  best  calculated  to  i>re- 
veut  all  injurious  and  unjust  inteipretations," 


i 


■ 


!|!ft' 


]; 

S  ;{(, 

r 

1 

ii     .-■ 

"'\ 

i,    .V 

40 

In  the  fifth  resohitiou  of  this  conference  it  is  claimed  that  the  treaty 
secures  to  Russia  this  advantage,  viz,  *'that  after  the  expiration  of 
ten  years  the  subjects  of  the  United  States  of  America  ?<;t'W  abstain 
entirely  from  visiting  the  waters  of  the  North  American  coasts  beyond 
54°  40'  and  from,  fishing  and  from  trcMing  there  tviththe  native  inhabi- 
tants.''^ 

The  majority  of  the  members  of  that  committee  stated  as  their 
opinion — 

That  the  treaty  of  April  5-17  must  be  ratified,  and  that  for  the 
prevention  of  any  incoirect  interj)retation  of  tliat  act  Gen.  Baron 
Tuyll  may  be  instructod  at  the  proper  time  to  malce  the  declaration 
mentioned  in  the  draft  of  the  communication  read  by  Count  N'essel- 
rode. 

The  minister  of  finan<!e  and  Acting  State  Councillor  Drushinin, 
while  admitting  the  necessity  of  ratifying  the  treaty  of  April  5-17, 
express  and  ])la(;e  on  record  the  special  opinion  liereto  annexed  in  the 
protocol,  to  the  effect  that  Baron  Tuyll  sliould  bo  instructed  at  the 
exithangeof  the  ratifications  of  that  treaty  to  sti])ulate  that  the  riglit 
of  free  hunting  and  fishing  granted  by  tlie  second  article  of  the  said 
treaty  shall  extend  only  from  rA°  40'  to  the  latitude  of  Cross  Sound. 

The  majority  of  the  members  of  the  committee  could  not  but  observe, 
on  the  one  hand,  that  as  the  Kussian-American  Company  has  founded 
many  settlements  in  the  said  latitude,  article  li  of  the  treaty  of  April 
5-17,  gives  it  tiie  desired  security  on  this  subject;  that  even  if  it 
had  simply  organized  hunting  and  fishing  in  tiu)se  regions  it  is 
extremely  doubtful  whether  American  subjects  would  undertake  the 
expense  necessary  for  voyages  to  those  Northern  latitudes  in  wliich 
they  can  enjoy  their  x)rivileges  for  only  ten  years,  and  whether  in  that 
case  they  would  expose  tlieinselves  to  dangerous  competition  and  would 
visit  those  waters  for  liiintiiig  and  fisliing  wliere  they  had  long  been 
anticipated  by  tlie  company,  as  there  would  be  little  hope  for  tliem  of 
indenniifying  themselves  for  their  expenses  and  losses. 

These  proceedings  show  that  the  Russian  claim  at  that  time  and 
under  their  construction  of  the  treaty  of  April  5-17,  1824,  was  that  the 
assertion  of  the  cxclnsive  right  of  fishing  and  hunting  north  of  59°  30' 
was  reserved  to  Russian  subjects  even  during  the  period  of  the  privi- 
leges that  were  granted  to  United  States  citizens  under  article  4  of  the 
treaty,  for  ten  years. 

This  attitude  of  Russia  towards  the  exclusive  right  to  the  fur  trade 
in  Bering  Sea  was  maintained  in  practice  down  to  18G7,  no  one  object- 
ing. The  close  care  of  the  fur-seal  industry  on  the  islands,  the  policeing 
of  the  seas  for  the  protection  of  fur-bearing  animals,  the  arrest  of  sus- 
pected or  offending  ships,  and  the  basing  of  civilization  and  govern- 
ment on  that  traffic  ui)on  all  her  coasts  atul  islands  in  Bering  Sea  by 
careful  legislation,  all  prove  that  Russia  admitted  no  (common,  or  part- 
nership rights  of  any  people  or  government  in  any  of  those  privileges 


41 


piivi- 
of  the 

Ir  trade 
lobject- 
jliceing 

)f  BUS- 

lovern- 
iea  by 
pait- 
/ileges 


or  industries.  Tliere  is  no  evidence  bnt  the  silence  of  other  ffov- 
ernments,  if  any  objection  to  these  clainis  of  Knssia  existed. 

In  every  stageof  the  negotiations  between  the  United  States  and  Great 
Britain  and  in  every  declaration  of  right  by  Knssia,  np  to  tlie  exchange 
of  ratifications  of  the  treaties  of  1824:  and  1825,  and  in  every  declaration 
of  Russia  since  that  time,  the  protection  and  security  of  her  fur  trade 
in  Bering  Sea  has  been  an  object  of  her  solicitude.  Every  govern- 
mental act  instituted  and  performed  by  Russia  in  that  connection  has 
been  exactly  in  correspondence  with  her  assertion  of  dominion  over 
Bering  Sea  as  a  preserve  for  taking  furs  through  hunting  "in  the 
northeastern  seas"  and  "in  the  gulfs"  thereof,  and  of  the  South  Sea, 
or  Pacific  Ocean,  and  along  her  coast  line,  south  as  well  as  north  of 
the  Aleutian  Islands  and  i)eninsnla. 

It  was  this  assertion  of  dominion  that  the  United  States  and  Great 
Britain  yielded  to  when  they,  res])ectively,  accepted  tlit^  restrictions 
upon  the  rights  of  "fishing  and  trading  with  the  natives,"  which  are 
limited  to  the  period  of  ten  years,  in  Articles  III  and  IV  of  the  treaty 
with  the  United  States,  and  Articles  III  and  VII  of  the  treaty  with 
Grea,t  Britain. 

In  the  treaty  of  1824  with  the  United  States,  Articles  III  and  IV 
are  as  follows : 

in. 

It  is  moreover  agreed  that,  hereaftei-,  there  shall  not  be  formed  by 
the  citizens  of  th**  United  States  or  under  the  authority  of  the  said 
States,  any  esta])lis]iment  upon  the  northwest  coast  of  America,  nor 
in  any  of  tiie  islands  adjacent  to  the  north  of  fifty-four  degi-ecs  and 
forty  minutes  of  north  latitude;  and  tliat,  in  the  same  manner,  there 
shall  be  none  formed  by  Russian  subjects  or  under  the  authority  of 
Russia,  south  of  the  same  parallel. 

IV. 

It  is,  nevertlicless,  understood  that  during  a  term  often  years,  count- 
ing fi'om  the  signature  of  tlie  pn'stMit  convention,  the  sliips  of  l)oth 
powers,  or  whidi  belong  to  tlieir  citizens  or  subjects  res]K'etiveIy,  may 
reciprocally  frequent,  without  any  hindrance  whatever,  the  interior 
seas,  gulfs,  harbors,  and  ciceks,  u])on  tin;  coast  mentioned  in  the  pre- 
ceding article,  for  the  purpose  of  fishing  and  trading  with  the  natives 
of  the  country. 

In  the  treaty  with  Great  Britain,  Articles  III  and  VII  are  as  follows: 

III. 

The  line  of  demarkation  between  the  possessions  of  the  High  Con- 
tracting Parties,  ui)on  the  (M)ast  of  the  continent,  and  the  islands  of 
America  to  the  northwest  shall  be  drawii  in  the  manner  following: 

Commencing  from  the  southernmost  point  of  the  island  called  Prince 


w 


42 


^,    ,  t 


I    -^ 


of  Wales  Island,  whicli  i)oint  lios  in  tlio  i)aralle]  of  fifty-four  decrees 
iiiul  forty  miimtos  north  latitude,  and  between  the  one  hnndred  and. 
thirty-first  and  tlie  one  hundred  and  thirfy-tliird  (le;;rce  of  west  longi- 
tude (meridian  of  GretMiwicli),  tlie  said  line  shall  aseend  to  tlie  north 
along  tlu'.  ehannel  called  Portliind  Oliannel,  as  far  as  tlie  point  of  the 
continent  wliere  it  strilvtss  the  fifty  sixtli  degree  of  north  latitude;  from 
the  last-mentioned  point  the  line  of  deni.irkation  shall  foUow  tlie  sum- 
mit of  the  mountains  situated  parallel  to  the  coast,  as  far  as  the  point 
of  inlersection  of  the  one  hundred  and  forty  first  degree  of  west  longi- 
tude (of  the  same  meridian);  and  finally  from  the  said  point  of  inter- 
section, the  said  meridian  line  of  the  one  hundred  and  forty- first  degree 
in  its  prolongation  as  i'ar  as  the  frozen  (x^eaii,  shall  form  the  limit 
between  the  IJussianaud  British  possessions  on  the  continent  of  Amer- 
ica to  the  northwest. 

VII. 

rt  is  also  understood  that  for  the  space  of  ten  years  from  the  signa- 
ture of  the  pit'sent  <;onvention  tlu^  vessels  of  the  two  iiowers,  or  tliose 
belonging  to  their  resjieiitive  subjects,  shall  mutuiilly  be  at  liberty  to 
IVecpient,  without  any  hiiidriince  whatever,  all  the  inland  seas,  gulfs, 
havens,  and  civeks  on  the  coast  mentioned  in  Article  111,  for  the  pur- 
pose of  fishing  and  of  trading  with  the  natives. 

If  Great  Britain  had  understood  that  the  treaty  of  182-f  with  the 
United  States  gave  to  their  citizens  the  perpetual  right  of  fishing  and 
trading  with  the  natives  in  ''interior  seas,  gulfs,  harbors,  and  creeks, 
upon  the  coast" — "the  northwest  coast  of  America" — and  "in  the 
islands  adjacent"  thereto,  "to  the  north  of  01040' north  latitude,"  that 
Government  Avould  not  have  accepted  a  limitation  of  this  right  to  a 
period  of  ten  years.  Under  sucli  a  construction  of  the  treaty  of  1824- 
with  the  United  St:ites  it  would  have  been  sheer  folly  for  Great  Britain  to 
have  given  Eussia  the  same  privilege  for  ten  years  from  Prince  of  Wales 
Island,  along  Portland  Channel  up  to  56°  of  north  latitude,  for  Great 
Britain  asserted,  with  absolute  confidence,  that  Ilussia  would  not  make 
terms  with  her  that  were  less  liberal  than  she  had  made  with  the  United 
States. 

If  Eussia  yielded  her  dominion  over  her  preserve  of  fur-seal  hunting 
in  peipetuity  to  the  United  States,  and  then  to  (ireat  Britain,  what 
could  have  been  the  necessity  that  prom])ted  them  to  insert  these  by- 
proN'isions  for  the  same  rights  for  a  period  of  ten  years  in  their 
treaties?  It  is  too  clear  for  disputation  that  Eussia  intended  to 
yield  these  rights,  reciprocally,  for  ten  years,  becauvse  she  was  not  will- 
ing that  they  should  extend  beycmd  that  period,  except  at  her  option. 
A  more  forcible  state. .leut  of  the  claim  of  Eussia  to  the  exclusive  right 
of  fishing  and  trading  with  the  natives  in  those  waters  could  not  well 
have  been  made. 


(leftTcea 
led  and 
it  l()nj>i- 
ic  iioi'th 
t  of  tlio 
le;  li'oui 
he  suin- 
le  point 
^t  loiisi- 
>t'  iiittT- 
td»'j;T<'e 
ic  limit 
•r  Amcr- 


or  tlios(^ 
beity  to 
IS,  ;^nlts, 
the  pur- 

witli  the 


ling  and 


creeivs, 

"in  the 

le,"  that 

^lit  to  a 

of  1821 

itain  to 
of  Wales 
01"  Great 
lot  make 

United 

hunting 
n,  what 
iose  by- 
in  their 
nded  to 
not  will- 
•  option, 
ve  right 
not  well 


43 

Yet  even  these  concessions  did  not  include  the  riglit  of  "  hniitinn  "  fur- 
bearing"  animals,  which  llus.\u(  icon  nicer  aslicd  Id  yield.  For  tliese  i)ur- 
poses  \wx  dominion  over  Uering  iSea.  and  all  the  gulls,  bays,  inland 
seas,  and  creeks  on  all  hei'  const s  was  reseived. 

The  rights  of  whaling,  lishing,  hunting,  and  trading,  condticting 
<jommerce  and  navigation,  are  all  refened  to  in  these  ukases  and 
treaties  as  separate  and  distinct  rights.  In  their  nature  they  are 
distinct,  and  none  of  them  includes  the  others,  thongh  they  are  closely 
related.  When  each  of  these  rights  is  exjjicssly  and  distinctively 
mentioned  in  one  part  of  these  treaties  and  ukases,  as  a  substantive 
right  or  i)ursuit,  it  is  not  a  proper  construction  of  these  solemn  insli'u 
ments  to  say  that  those  rights  aie  intended  to  be  included  in  those  parts 
where  they  are  not  mentioned,  or  that  "hunting"  is  teles(M>i»ed  into 
"lishing"  and  "lishing"  into  "  whaling  "  and  all  of  them  into  ••  navi- 
ation,"  or  that  the  use  of  that  word  or  the  assertion  of  that  light 
iiuiliidcs  all  these  other  rights. 

Dominion  of  Dering  Sea  could  have  been  exer<*ised  for  the  exclusive 
enjoyment  and  protection  of  either  of  those  rights,  without  including 
any  other,  though,  as  in  the  case  of  the  100  miles  limit,  which  was  a 
moditication  of  the  claim  of  the  exclusive  right  of  navigation,  the  full 
exertion  of  that  power  would  have  closed  that  sea  to  all  navigators 
whether  they  were  whalers,  lishermen,  or  hunters.  The  ukase  of  1700 
asserted  this  dominion,  so  as  to  protect  the  right  of  "hunting  in  the 
northeastern  seas"  and  of  trading  with  the  natives,  and  no  other  ukase 
or  treaty  ever  yielded  the  exclusive  right  of  hunting,  under  any  con- 
dition, or  the  right  of  fishing  to  any  other  extent,  than  under  the  ten 
years  limit  provided  in  the  above-quoted  articles  of  those  treaties  of 
1821  and  1825. 

]3ominion  in  one  country  over  land  or  sea,  is  entirely  consistent 
with  easement  or  privilege  in  another. 

Navigation  is  a  universal  easement  to  be  enjoyed  by  Till  w^scls  sail- 
ing on  lawful  voyages  upon  the  high  seas,  but  it  has  no  tirn-'iif  of 
dominion  to  support  it,  excei)t  within  territorial  waters.  Fishing,  law- 
fully conducted,  is  also  an  easement  equally  universal,  and  the  right 
is  also  exclusive  in  territorial  waters. 

The  dominion  that  protects  fisheries  is  more  cx<;lusive  than  that 
Avhich  limits  the  free  right  of  navigation.  Within  territorial  limits, 
fishing  t,s  «j[j/v>2)er/y  >•////(/,  while  navigation  within  those  limits  is,  for 
innocent  i)urposes,  an  easement  that  no  nation  denies  to  another. 


J: ,  i  1 

■i'  ■ 

1 ''.'}.  • 

i..u 


1f 


44 

ttnnting  ia  an  eaRcmeiit  that  is  still  luoro  under  tlio  control  of  niitionni 
(loiiiinion,  beciiusc  it  is  conducted  'svitii  lireiirins  and  is,  tliercstbrc,  a 
more  dangeiouH  i)ra('ti(.'e  where  the  i)eoi>lo  are  savajies  or  are  rebel- 
lious, because  it  furnishes  a  pretext  for  introducing  among  them  arms 
and  ammunition.  And  hunting  and  trai)i)ing  are  dill'erent  pursuits, 
llussia  had  powerful  iiulucements  for  keeping  hunting  on  land  or  sea 
and  trading  with  the  natives  under  her  exclusive  dominion. 

What  is  domiidon?  Sir  Kobert  Phillimore,  in  his  "Commentaries 
on  International  Law,  Vol.1,  p.  20(5,  Ed.  1871,  says:  "J)omini(uii8  the 
fullest  right  which  can  be  exercised  over  athifig:  ihe  rhiht  of^tropcrty, 
NO  called."  On  page  '-'(17  he  says  :  "As  dominion  is  accpiired  by  the  com- 
bination of  the  two  elements  o(faci  and  intention,  so,  by  the  dissoIuti<m 
of  these  elements,  or  by  the  contrary  fact  and  intention,  it  may  be  lost 
or  extinguished." 

On  page  274  he  says : 

But  when  o(!Cupatiou  by  use  and  settlement  has  followed  upon  dis- 
covery, it  is  a  clear  proposition  of  law  that  tiiere  exists  that  corporal 
possession  [eoyporalis  (junedam  })osscssio  (a)  detcutio  corporolix  (I)) )  which 
confers  an  exchisive  title  upon  the  occui)ant,  and  the  dominium  tint- 
nens,  as  jurists  speak,  upon  the  country  whose  agent  he  is. 

On  page  285  he  further  says: 

CCXLTf.  The  nature  of  occupation  is  not  confined  to  any  one  class  or 
description;  it  must  be  a  benelicial  use  and  occuimtion  (le  travail  d'  ap- 
pro[)riation):  but  it  may  be  by  a  settlement  for  the  ]>ur])()se  of  prose- 
cuting a  particular  tra<le,  such  as  a  iishery,  or  for  working  mines,  or 
piistoral  occupations,  as  well  asiigri<!ulture,  tliougli  IJynkershoek  is  cor- 
lect  in  saying,  cultura  ntique  et  cura  a<jri  possessionem  quam  maxime 
indicat. 

V'attcl  Justly  maintains  that  the  pastoral  occuitation  of  the  Arabs 
entitled  them  to  the  exclusive  possession  of  the  regions  which  they 
inhabit. 

It  has  been  truly  observed  that,  agreeably  to  this  rule  the  North 
American  Indians  would  have  been  entitled  to  liave  excluded  the  British 
fur-traders  from  tluiir  hunting-grounds;  and  not  having  (h>ne  so,  the 
latter  must  be  considei<'d  as  having  been  admitted  to  a  Joint  occui)a- 
tion  of  the  territory,  and  thus  to  have  become  invested  with  a  similar 
right  of  excluding  strangers  from  such  portions  of  the  country  as  their 
own  industrial  operations  pervade. 

COXLIII,  A  similar  settlement  was  founded  by  the  British  and 
Ivussiau  fur  companies  in  North  America. 

The  chief  poition  of  the  Oregon  Territory  is  valuable  solely  tor  the 
fur-bearing  animals  which  it  produces.  Various  establishments  in  dif- 
ferent parts  of  this  Territory  organized  a  system  for  securing  the  preser- 
vation of  these  animals,  and  exercised  for  these  purposes  a  control  over 
the  native  population.  This  was  rightly  contended  to  be  the  only  exer- 
cise oi j)roj)iictarjj  ri(jht  of  which  these  particular  regions  at  that  timo 


national 
Mctbre,  a 
re  rebel- 
lem  arum 
pursuits, 
lid  or  sea 

neutaries 
lion  is  tlie 
'  property , 
tlie  coui- 
issolution 
iiy  be  lost 


upon  (lis- 
t.  corp(»ral 
b) )  wliioh 
nium  emi- 


le  class  or 
^  ail  d'  ap- 
of  i)rose- 
inines,  or 
lelc  is  cor- 
maxinie 

le  Arabs 
lich  tliey 

10  T^ortli 
ic  liritisii 
10  so,  the 
t  occui)a- 
a  similar 
y  as  their 

itish  and 

ly  ibr  the 
lits  in  dit- 
lie  preser- 
Itrol  over 
[nlyexer- 
lUat  tiuio 


45 

wore  Rus('e])tib1o,  and  fo  -work  that  a  hcncjinal  vsc  was  made  of  the 
wliole  Tt'iritory  by  the  occiipaiils. 

CCXIilV.  It  should  be  incntidiicd  that  the  practice  of  nations  in 
both  hemisplicres  is  to  a('iiiio\vl('d<j;c  in  laxor  <»t  any  civili/.ed  nation 
makinjjf  a  setllcincnt  in  an  uiicivili/cd  rountiy  a  ri;;ht  o\'  prci'mption 
of  tlie  rnuti(/uou.s  territory  from  the  native  iiiliabitants  as  against  any 
other  civilized  nations.  Jt  is  a  ri^ht  claimed  by  (Ircat  IJritain  willi 
res])ect  to  her  Australian  settlements,  especially  Sew  Zealand;  and  by 
the  United  States  of  America  with  respect  to  tiie  Indians  in  their  back 
States. 

In  the  claim  of  Russia  to  the  exclusive  "hniifinpr  in  the  Northeastern 
seas,"  to  say  nothing  of  the  rights  of  fishery  and  navigation,  as  such 
rights  are  defined  in  the  international  law,  there  is  enough  in  the  liighest 
legal  authority  to  support  thefouiidation  of  theriglit,whi(!h  is  the  hand- 
maiden of  peace,  namely,  the  right  which  is  "a  mode  of  original  ac(pii- 
sition  which  is  efl'ected  by  the  ojieration  of  time,"  and  is  "what  the 
English  and  French  Jurists  term  prescri[)tion." 

On  page  208, Vol.  1,  Sir  ]^»bert^hillinlOle  says: 

The  doctrine  of  immemorial  prescri])tion  is.  from  the  very  necessity 
of  the  case,  indisjiensable  in  the  system  of  public;  law.  A<'coidingIy 
we  find  it  mentioned  more  than  once  in  the  constitutions  of  the  ancient 
German  Empire  and  as  a  mode  of  accjuiring  i»iiblic  rights. 

On  pages 299  and  300  tlie  same  author  says: 

Having  discussed  the  ])osition  of  ])rescription  in  the  systems  of  pri- 
vate and  public  law  we  now  a])proacli  tin.'  consideration  of  a.  niaiter, 
holden  by  the  master  min<lof  (irotius  to  be  one  of  no  mean  ditti<'ulty, 
namely,  international  iirescription.  Does  there  arise  between  nations, 
as  between  individuals,  a  piesumi)tioii  from  long  ])osses,sion  of  a  terri- 
tory or  of  a  right  which  must  be  considered  as  a  legitimate  source  of 
international  acquisition  ? 

In  seeking  an  answer  to  this  important  (piestion  it  is  necessary  to 
keep  clear  of  all  subtle  dis(]uisitions  with  which  this  subject  has  ])een 
perplexed;  whether,  for  inst  a  nee,  it  be  the  creature  of  natural  or  civil  law, 
or  whether  it  must  be  always  founded  up<ui  a  presumption  of  voluntary 
abandonment  or  dereliction  by  the  former  owner.  Tlirough  these  meta- 
jdiysical  labyrinths  we  can  not  find  a  clue  Ibr  (luestionsof  internationtd 
jurisprudence.  The  elleet  of  the  l(i)>se  of  lime  ui>ou  the  ]»ropei  ty  and 
right  of  one  nation  relatively  to  another  is  the  real  subject  for  our  con- 
sideration. And  if  this  be  boriK'  steadily  in  mind  it  will  be  Ibund,  on 
the  one  hand, in  the  highest  degiee  irrational  to  deny  that  jui'scriptioii 
is  a  legitimate  means  of  international  acfiuisition;  and  it  will,  on  the 
other  hand,  be  found  both  iiiex])edient  anti  impiacticable  to  attempt  to 
define  the  exact  period  within  Avhicli  it  can  be  said  to  have  l)econie 
established — or,  in  other  words,  to  settle  the  precise  limitation  of  time 
which  gives  validity  to  the  title  of  national  possessions. 

Again,  on  pages  oOl,  302,  and  303,  he  says: 

Ct'LVIII.  It  is  true  that  some  later  writers  on  thelaw  of  nations  have 
denied  that  the  doctrine  of  prescription  has  any  ])lace  in  the  system  of 
international  law.  But  their  opinion  is  overwhelmed  by  authority,  at 
variance  with  practice  and  usage,  and  inconsistent  with  the  reason  of 
the  thing.     Grotius,  Heiueccius,  Woltf,  JNIably,  Vuttcl,  llutherforth, 


46 


1 


i    !  '; 


Wlioaton,  and  TJnrlco  ronstitnto  a  proatly  inopondcratiiip:  array  of 
ttufliorities,  1k»11i  as  f<>  nuinlici'  and  \\«'i{jlif,  np(»ii  tlu>  opposite  side. 

The  nra('ti<!e  of  nations,  it  is  not  denied,  i)foctHMls  npon  tlie  pitisuinp- 
tionot']>ies('iiption,\\iienevertliereiHseop«'ror  tlie  admission  of  that  do(^ 
trine.  The  same  reason  of  tlie  thin^'  whieli  intiodneed  tills  principle 
into  the  eivil  .jnrispnidenee,  of  every  eouni.y,  in  oicU'i-  to  qniet  ))osseH- 
sion,  ii'iyi',  security  to  jn'operty,  stop  liti^^ation,  and  jnevent  a  static  of 
continned  bad  (eclin^  and  hostility  between  individuals,  is  e<|ually 
po\v<'i'ful  to  introduce  it.  for  tlie  same  ]mi'pose,  into  the  Jurisprudenee 
whi<!li  rejAiilates  tlie  infcrccuirse  of  one  society  with  another,  more 
espj'cially  when  it  is  remembered  that  war  represents  between  States 
litif-ation  between  individuals.  It  is  very  stranjje  that  the  fact  tiiat 
Tii{>st  nations  possess  in  their  own  mnnicipal  codi's  a  ]»ositlve  rule  of 
law  upon  the  sid)ject.  lias  been  used  as  an  ai  <;ument  that  tlie  general 
doctrine  has  no  foundation  in  international  law. 

It  is  admitted,  indeed,  that  immemorial  ])rescription  eonstitntes  a 
{••ood  title  to  national  possession;  but  this  is  a  jierfectly  nugatory 
admission,  if,  as  it  is  sometimes  exiilained,  it  means  only  that  a  State 
which  has  acquired  originally  by  a  bad  title,  may  keep  possession  of 
its  acquisition  as  against  a  State  which  has  no  better  title.  If  it  had 
been  merely  alh'ged  that  the  exact  number  of  years  prescribed  by  the: 
TJonian  law,  or  by  the  muiiici])al  institute  of  any  i»aiticular  nation,  as 
necessary  to  constitute  ordinary  jnesciiiiitions,  is  not  binding  in  the 
atfairs  of  nations,  the  ])osition  would  be  tine.  Jt  is,  perhaps,  the 
dilliciilty  attending  the  ajiplication  to  nations  of  this  technical  part  of 
the  doctrine  which  has  induced  certain  writers  to  deny  it  altogether; 
but  incorrectly,  for,  w  liatever  the  necessary  lai>se  of  time  may  be,  theie 
uiKiuestionably  is  a  lapse  of  time  after  which  one  State  is  entitled  to 
exclude  every  (►ther  from  the  property  of  which  it  is  in  .actual  posses- 
sion. In  otlu'r  words,  there  is  an  international  inescription,  whether 
it  be  called  immemorial  possession  or  by  any  other  name.  The  peace 
of  the  world,  the  highest  and  best  intta-ests  of  humanity,  the  fulfillment 
of  the  ends  for  which  States  exist,  refiuire  that  this  doctrine  be  lirmly 
incorporated  in  the  code  of  international  law. 

Will  this  irihunaJ  fthrinlcjrom  the  recognition  of  this  doctrine,  notv  that 
an  opportunity^  distiiicth/  (jircn,  calls  for  a  firm  declaration  f 

The  importance  of  prescri])tion  as  a  basis  of  title,  or  right,  to  any 

proiierty,  or  exclusive  privilege,  is  thus  stated  by  Sir  llobert  Pliilli- 

more  (p.  305): 

But  that  prescri])tion  is  the  main  ])illar  upon  which  the  security  of 
national  proiicrty  and  i)eace  depends,  is  as  inconlrovertable  a  projiosi- 
tioii  as  that  the  property  and  peace  of  individuals  rest  upon  the  same 
djictrine. 

To  these  remarks  should  be  added  the  observation  of  another  great 
mo«lern  jurist: 

The  general  consent  of  mankind  has  established  the  principle  that 
long  and  uninterrupted  possession  by  one  nation  excludes  the  claim  of 
every  other.  Whether  this  general  consent  be  considered  as  an  im])lied 
contract  or  as  positive  law,  all  nations  are  equally  bound  by  it,  since 
all  are  parties  to  it,  since  none  can  safely  disregard  it  without  impugn- 
ing its  own  title  to  its  possessions,  and  since  it  is  founded  upon  mutual 
utility,  and  tends  to  promote  the  general  welfare  of  mankind.    (Wheaton.) 


47 


iirriiy  of 
side. 

presiiinp- 
■tliat(l(Hv 
priiH'ipU^ 
't  i»oss«'S- 
i  t^tatt^  of 
i  equally 
ijnudt'iife 
nT,  move 
en  States 

fact  that 
kc  nilo  of 
le  geiicial 

stitutcs  a 

miyatovy 

it  a  State 

si'ssiou  of 

If  it  had 
etl  by  the 
nation,  as 
iif?  in  the 
•hiips,  the 
ral  part  of 
iltofiethor; 
y  be,  there 
?n titled  to 
|ial  posses- 
whether 
The  peace 
fulfdlnient 

be  livndy 

e,  notv  that 

t,  to  any 
eit  rhilli- 


?ecnrity  of 

ii  pvo]»osi- 

tlie  same 

ther  great 


ciple  that 
le  claim  of 
iin  imiilied 
y  it,  since 
t  inipngn- 
on  nuitual 
VVheaton.) 


In  one  of  those  treatises  which  show  how  deeply  the  mind  of  the 
writer  was  iinlmed  with  the  piinciples  of  giMiiu'al  jurisjtnulciice,  Mr. 
liurko  uses  the  following  admirable  expressions: 

If  it  were  |)('rmitled  to  argue  'vith  power,  might  ojip  nf>t  as1<  one 
of  these  genth'iiK^n  whether  it  would  not  be  more  natuial  iiist('a<l  of 
wantonly  mooting  these  (piestions  concerning  their  pr(»perty,  as  if  it 
were  an  t'xerc^ise  in  law,  to  found  it  on  the  solid  rock  of  presciiption  J 
Tiie  sound<>st,  the  most  gen«Mal.  the  most recogni/e<l  title  between  man 
ami  man  that  is  known  in  municipal  or  public  Jni  isprnd(>nce;  a  tith^  in 
which  not  arl)itriiry  institutions,  but  th(^  eternal  order  of  things  gives 
Judgment;  a  titles  which  is  not  the  (creature,  but  the  ma.-«ter  of  positive 
law;  a  mid  which  thoiifih  not  fUetl  in  its  fmii^  is  rootid  in  its  pyiiii-iplts 
ill  thf  law  of  natnrc  itself,  and  is  indeed  the  original  ground  of  all 
known  ])roperty;  (or  all  pr()perty  in  soil  will  always  be  traced  back  to 
that  source,  and  will  rest  thcMC.  *  *  •  'fliese  gentlemen,  for  1  hey 
have  lawyers  amongst  tliem,  know  as  well  as  I  that  in  JCngland  we 
liiive  always  a  i»reseription  or  limitation,  <ts  c'l  nations  haw  aijaiust 
each  other.  *  *  *  All  titles  terminate  in  jtrescription ;  in  which 
(differently  from  time  in  the  fabulous  instances)  the  son  devours  the 
father,  and  the  last  prescription  eats  up  all  the  former. 

These  citations  Irom  very  eminent  Ibitish  authority  establish  the 
right  of  a  government  by  i)rescription,  based  on  occupancy  and  claim 

of  title,  to  any  dominion,  on  land  or  sea,  of  anything  in  the  nature  of 

property,  whether  corporeal,  or  incorporeal,  as  tirndy  as  if  the  right 

were  established  by  grant  or  aa  the  residt  of  conrpiest  or  cession. 

The  true  doctrine  of  the  international  law  is  stated  in  the  extract 
above  (juoted  from  Wheaton  (Vol.  1  ]>.  Ii07)  that  "  The  general  con- 
sent of  mankind  has  established  the  i»rinciple  that  long  and  unintcr- 
rujited  possession  by  one  nation  excludes  the  claim  of  every  other." 

This  rule  is  fully  apiilicable  to  the  dominion  of  Russia  over  the  fur 
industry  and  trade  in  Bering  Sea,  which  was  never  yielded  or  trans- 
ferred to  any  government  until  it  was  sold  to  the  United  States. 

Dominion  also  includes  the  right  of  a  government  to  the  soil  ben<'ath 
the  territorial  and  adjacent  waters.  The  <;laim  of  territorial  waters 
over  an  .area  of  the  sea  that  is  clearly  deinarked  by  land  boundaries, 
though  not  entirely  inclosed  by  the  land  is,  a  valid  exercise  of  power 
by  the  government  that  owns  the  land  which  foi-ms  the  cousts  and 
islaiuls  that  define  the  boundary.  It  may  not  be  sufiicMcnt  to  destroy 
the  easements  that  other  nations  may  have  in  those  waters,  yet,  it  is 
dominion  or  oAvnership  of  the  land  beneath  those  waters,  and  it  is  clearly 
sutiicient  to  support  the  municipal  jurisdiction  of  the  government  over 
its  own  citizens,  and,  also,  to  su[)port  a  (ilaim  to  any  ]>earl  or  oyster  beds 
beneath  such  an  area  of  waters,  or  any  mines  that  may  be  found  there. 

Such  a  claim  and  assertion  of  ownership  may  not  be  suflicient  reason 


!!ll 


48 


i  ij 


for  (lonyiiig  to  other  iiatioiia  in  that  area  the  privilege  of  navigation 
or  iisliery,  but  that  fact  does  not  negative  the  dominion  that  may  be 
tiins  la^vfully  exercised.  To  ilhistrate:  If  an  island  slionld  be  thrown 
up  by  volcanic  action  or  the  action  of  the  waier  within  the  limits  of 
Bering  Sea  it  wonkl  belong  to  the  United  States,  without  first  discovery 
or  occui)ation,  in  virtue  of  its  dominion  already  exercised  over  that  sea. 
And,  so,  if  it  became  necessary  that  the  United  States  should  close 
Unimalc  Pass  with  obstruction,  for  any  purpose,  even  to  the  great 
inconvenience  of  navigators  3r  fishermen,  the  question  of  the  right  to 
do  this  would  be  resolved,  utider  the  international  law,  by  the  other 
question  whether  the  easement  of  navigation  through  that  pass  was  of 
such  imi)ortance  to  the  world  that  the  owner  of  the  soil  beneath  the 
water  would,  in  justice,  be  compelled  to  yield  its  riglif^s. 

In  all  such  cases,  wheie  the  exercise  of  the  privilege  of  navigation, 
fishery,  or  other  easement  is  injurious  to  the  owner  of  the  soil  above 
Avhich  it  is  exercised,  tlie  privilege  must  yield  to  the  higher  right  of  the 
dominion  of  the  owner  of  the  soil. 

The  right  of  dominion  in  a  sea  like  Bering  Sea  or  the  sea  of  Okhotsk 
does  not  depend  on  its  being  separated  from  water  communication  with 
the  ocean.  If  the  configuration  of  the  land  surrounding  it  is  such  as 
to  make  it  necessary  to  the  peculiar  commerce  of  the  country  within 
which  ii  is  embayed,  or  to  the  defense  of  such  country,  or  to  the  proper 
administration  of  its  i)()weis  of  government  over  its  own  people,  it  is  a 
right  ex  debito  juNtitiw  that  there  should  be  doinini(m  over  such  sea. 

This  is  the  right  that  is  now  the  foundation  of  the  exclusive  right  of 

sevei'al  nations  to  dominion  over  seas  tiiat  are  not  inclosed  by  the  land 

on  tiieir  sliorcs,  as  stated  by  Sir  llobertriiillimore,  jtage  225,  as  follows: 

The  exclusive  >iglit  of  the  Biitish  Crown  to  the  liristol  t!hannel,  to 
the  channel  between  Ireland  and  Gieat  IJritain  (Mare  Ilibernicum, 
Canal  do  St.  (ieorge),  and  to  tlie  channel  between  Scotland  and  Ire- 
land is  un(;ontested.  I'retty  much  on  tlie  same  category  are  tiie  three 
straits  forming  the  entrance  to  tlie  Baltic,  the  Great  and  tlie  Little 
Belt,  and  tlie  Sound,  which  belong  to  the  Crown  of  DiMimark;  the 
Straits  of  Messina,  (il  faro  dl  Mcssiitn,  frcfuni  jSVc»/»///),  once  belonging 
to  tlie  kiiigdiini  <»f  the  Two  Sicilies;  the  straits  leading  to  the  Black 
Sea,  tlie  Dardanelles  and  Ilellesjiont ;  the  Tliraeiaii  Uosphorns,  belong- 
ing to  the  Turkish  lOiiijiire,  To  narrow  seas  which  flow  between 
se|»arale  i»ortioiis  of  the  same  kingdom,  like  the  Danish  and  Turkish 
Straits,  as  to  other  seas  common  to  all  nations,  like  the  Stiails  of 
INIessiaa  and.  iierhaps  the  St.  Ceoige's  (!liaiinel,  the  doctrine  of  iitnocent 
UHC  is,  accrirding  to  Vattel,  strictly  apidicable. 

In  the  ease  of  the  seas  here  mentioned  other  nations  have  the  right 

to  the  innocent  n.sc  of  ihein,  hut  it  innst  rest  with  the  nation  cluiinino 


|i      m. 


vigation 
b  may  be 
J  tliiown 
limits  ol' 
liscoveiy 
that  sea. 
uld  close 
lie  great 
!  right  to 
;lie  other 
ss  was  of 
leatli  the 

ivigatioii, 
«jil  above 


>;ht  of  the 


f  Okliotsk 
iitioii  with 
is  such  us 
ry  within 
he  proper 
ule,  it  is  a 
iiicli  sea. 
e  right  of 
Y  the  land 
isfoll«)\vs: 

;iiiiK'l,  to 

xMiiicum, 

and  Irc- 

the  three 

lie  Little 

nark;  the 
x'loniiing 

;li.'  I'.lack 
s,  belong- 
ln'tween 
Turkish 

Straits  of 

){'  iinUHTHt 

the  right 
I  damUuj 


49 

them  to  (Jeter))) n)r  x-JirlJie)'  the  nse  that  is  )iiii(le  o/ lln  )»  In/ enxttlie)-  ))iiliii))  ?.s 
innocent.  This  is  all  that  the  United  States  chiini  of  "■dominion"' 
over  Bering  Sea  in  res])ect  to  the  ])rotection  and  preservation  of  tln^ 
liir-seala  resorting  to  those  wateis  and  the  imlustry  in  the  pelts  and 
oil  so  long  established  on  their  islands,  which  liave  no  value  for  any 
other  iiulustrial  jiurpose. 

This  claim,  when  these  waters  aie  inviided  by  a  destnictivc  method 
of  hunting  the  seals,  is  a  right  of  self  [)rescrvat ion.  That  ligiit  is  lluis 
stated  by  Sir  Robe  it  Pliilliniore: 

(J(!X.  The  right  of  sell'i)resei'vation.  by  tliat  (It  I'lisc  wliich  ])i('\enfs, 
as  well  as  that  wiiich  rcj^'ls,  attack,  is  the  ne\(  international  right 
which  pr»>s(Mits  itself  for  discnssion.  and  wliicli,  it  will  i»c  seen,  may 
under  certain  circumstances  and  to  a.  certain  e\tenr  nindily  the  light 
of  territorial  inxiolability. 

(X!Xr.  The  right  of  self-preservation  is  the  tiist  law  of  nations  as  it 
is  of  individuals.  A  society  wliicli  is  I'ot  in  a  c  mlition  to  rcjici  aggics- 
sion  fioiii  witiiout  is  wanting  in  its  piiuciiial  duly  to  the  members  of 
which  it  is  c()m])osed  and  to  the  chief  end  of  its  institution. 

All  means  wliich  do  not  atfect  the  indeinMua'iici;  of  other  nations 
are  lawful  for  this  end.  No  n:itioii  has  a  rigiit  t)  presciihe  to  another 
what  these  means  shall  be,  or  to  reciuire  any  accouiii  of  hei'  conduct  in 
L!:is  respect. 

CC'Xli.  The  means  by  whi(;h  a  nation  usually  piii\ides  for  Iict' salety 
are:  (1)  By  alliances  with  other  States;  (l!)  by  maintaining  a  military 
and  naval  Ibrce;  and  (•"))  by  erecting  tbititicat  ions  and  takiiiL:  measures 
of  the  like  kind  within  her  own  dominions.  Her  full  liberty  in  this 
resp(  .'tcan  not  as  a  general  principle  of  international  law  be  too  l>'441y 
announced  or  too  tirndy  maintained,  though  sonic  luodifieati'in  o^  it 
appears  to  tlow  from  the  Cipial  and  (■(nresjiondinu  right-  "f  otlwr 
nations,  or  at  least  to  bo  re(jiii!"d  'or  the  sa!;e  of  the  ge.ieial  weifurt'  and 
pea(!e  of  the  world. 

The  IJniLed  Slates  h;.vc  tlie  right  to  treat  tlie  -.mlde  ii;  '  >\  ■  ■_ n" 
iiu'rease  of  the  nuinber  of  sessels  engaged  ai  '  tl^  n  f«<  m^»^ 
taken  in  pelagic,  hunting  as  an  iiniieiidiiiL;  tin  lat  of  tli<  lii-vt:  m  ■  win  ^ 
the  seal  herd  that  habitually  results  tu  their  i-Iand  ,  'I  In  -v  I'l-i* 
hensioiis  are  more  directly  exciteil,  because  tiny  air  ,«»  runlh  lus^iiii-d 
by  the  attack  made  on  the  seal  iieid.  ilmn  those  «  hieh  it*  ie.uai«led 
as  a  Just  cause  ()f  war  in  relation  to  arnnriieiits  'p\  iieiglihoiiii;;' naJio'i**!. 
Of  these  Sir  Kobert  I'iiilliniore  says,  on  page  -"lu: 

C( 'X  II  r.  ,\r  Ilia  incuts  suddenly  increased  loan  e\traordinar\  amoinnt 
are  calculated  to  alarm  other  nations  whoe  lib.'ily  they  ;  ppem-.  iiio'r^i 
or  less  according  t(t  the  circumstances  of  the  case,  to  iiienac*-. 

In  the  seizure  of  ships  within  the  eastern  waters  ol'  ISeriu!.'  S»^ii  tl»r 

rnited  States  resisted,  in  the  begin  ii  in  L;-.  a  raid  uiton  her  induslry  wiiiicli 

suddenly  threatened  its  destruction,  and   this  resistance,  wlii<  h  wan 

timely   and  necessary,  was  made  williiii   her  own  douiinioii  -  a  (Luiiiin- 


60 

ion  ostivblislK-d  by  proscription  ns  to  the  fur-seal  industry,  and  which 
also  has  I'or  its  sni»port  tli:  principles  of  the  iiiternatioiialhiw  whicli 
ajiply  to  tlie  i5iitisli  waters,  above  (pioted,  and  to  otiier  seas  tliat  are 
not  entirely  inclosed  by  the  land  mentioned  in  tlic  following  quotatioiis 
from  I'hillimorc,  vol.  1,  p.  2i;3; 


war.  ami  ny  i  nc  rreaiy  oi  nie  i  »ar(ian"iics  i  nc  i>iacK  oc;i  w  as  praciicaiiy 
conlined  to  IJnssian  and  Turkisli  siiips  ol'  war,  I5ut  by  tlie  treaty  of 
Paris  of  ISoli  this  sea  is  nentrali/.e(l  and  o|)on  to  thcnierciiant  ships  of 
all  nations  and  closed  to  sliips  ol'  war  of  any  State. 

('(J\  I.  'fhcre  is  anotiu'r  class  of  inclosed  seas  to  which  the  same 
rnles  of  law  arc  ai>plicable — seas  w  Inch  are  land  locked.  thou,nh  not 
enlirely  siirronndecj  by  land.  Ol'  ilu'se.  that  ^reat  inlet  which  washes 
the  eoa>t  of  I  )enmark.  Sweden,  b'nssia,  and  I'lnssia.  tiie  Ostsee  as  the 
<  iernians  call  il,  the  JlallicSea  according  to  its  nsnal  appellation,  is 
tlie  principal. 

Ilnl  the  ri.Liiit  of  self  lU'cservation  of  the  Tnited  Slates,  in  respect  to 
the  far  seal  indnsti'y,  naturally  and  without  reference  to  the  actual 
pro|ierty  in  ihe  animals,  extends  beyond  lier  domiinon.  As  to  such 
rig'lits  I'liillimore,  says: 

('("Xl\'.  We  have  Iiitiierto  considered  what  measures  a  nation  is 
entitled  lit  take  lor  ihe  preservatiiui  of  her  safety  within  her  own 
dominions.  It  may  happen  that  the  sanu'  ri<iht  may  warrant  her  in 
exleiidint;  precantionar,\  measures  irilhatd  these  limits  and  even  in 
rrairsi;ressi!it:  the  i)or(lers  oi'  her  nei,i:hi"U''s  teirilory.  V\\y  international 
law  considers  Ihe  riL'ht  of  self-pn^servation  as  |>ri<M'  and  paramount 
To  that  of  territorial  inviolability,  and.  where  they  conllict,  justilles 
t!,c  maiiileiiaiKc  of  I  he  former  at  t  lie  expense  of  the  latter  ri;L;ht, 

1  f  this  I'iylit  of  self-])reser\  aliiui  is  prior  and  paraimmnt  to  territo- 
rial invioialiility.  it  must  lie  superior  to  any  right  or  easement  of  lishing 
and  liiinling.  and  better  cut  i I  led  to  the  ]adteetioii  of  interfialioiml  law. 
Tin!  necessity  for  pioiecting  this  right  is  now  as  imiiiifest  and  indis- 
putable lieyond  lieiing  Sea  as  within  its  limits.  When  a  source  ol 
revenue  or  a  necessary  instrumentality  of  government  is  iittacked,  or 
si  riou,sl\-  lliieatcned.  the  occasion  arises  for  the  interposition  of  the 
ri;.;'it  of  s.'li  <b'i'eiise. 

The  c.mligiiiatiiui  ol   Keriiig  Sea.  its  coasts  and  islands,  is  snch  ns  to 

.  sivf*'  it  an  exceptiimal  lelatifiii  to  tlie  outside  world.     It  is  inclosed  (Ui 

all  siiius  by  land  and   Iru/.eu  waters,  exiipL  through  I  he  passes  of  tlio 


and  which 
law  which 
IS  that  are 
liiiotatious 


(1,  so  as  to 
loses:  liiii- 
iii  (.'f  law  is 
s  in  as  full 
iind  Uliick 
lussia  had  • 
til  sliips  of 
IniU'ticjilly 
V  treaty  of 
ut  ships  of 

I  the  satno 
liou,t;h  not 
ieh  washes 
set'  as  the 
leliation,  is 

respect  to 
the  actual 
As  to  such 


I  nation   is 

II  her  own 
ant  lier  in 
11(1  even  in 
tei  iiatidiial 
paiaiiionnt 
•t,  jiistilies 
I'igiit. 

to  territo- 
t  of  lisliiiij^f 
iiiotial  law. 
and  indis- 
i  source  of 
f  tacked,  or 
tioii  of  the 

;  such  ns  to 
inclosed  on 
sses  of  the 


61 

Aleutian  and  Kanitscliatkan  islands.  A  blockade  of  the  Aleutiau 
passes  would  close  every  jiort  in  IJerin.i;-  Sea  an.l,  wIhmc  a  nation  .n.y 
betl.us  locked  ill. it  is  not  too  much  to  claim  that  it  has  (he  ri-litof 
*l->nunon  over  su.h  int.iior  waters  and,  Ibr  purposes  of  selt^prelc-rva- 
tioii,to  lock  other  nations  out. 

It  is  a  Just  rioht  tiiat  is  th„s  claimed  by  the  United  States,  and  when 
d  's  used  (or  purpu.es  of  ^elfprcservatiuu  it  is  sustained  by  inter- 
natiouailaw. 


€?1 


5    .     I' 


llf^ 


!lL 


WHEN  POINT  FlYE  Ol.'  AKTIOLE  VI  OF  THE  TIJF ATY  AVAS  VNDKU  CON- 
SIDKUATION  SE.NATOlt  MOllGAN  BELIVEUED  THE  I'OIXOVVING 
Ol'INlON: 

1  bej;'  loave  to  submit  tlio,  t'ollowini;'  additional  statcinciits  and  arjiU 
iiieiits  wliich  1  think  are  suClicicnt  to  cstablisli  that  tlic  |>i(  sci  iptive 
riglits  of  Russia  and  the  United  Htates,  in  lespect  oftlic  Cur  s<'als  tliat 
habitually  resort  to  IJerinySea,  are  to  be  sately  Ijascd  upon  tlic  continued 
and  un(iU(;sti(Mied  usa.i^c  of  both  countries,  as  well  as  upon  the  j)ecnliar 
chara<;terlsti('s  of  these  animals. 

And  1  will  ciHleMvor  to  state  the  icasons  that  eom]»el  me  to  hold,  on 
these  and  some  other  ^loiinds,  that  the  United  Statr'N  lia\e  a  rij^lit 
of  propeity  and  i>rotection  in  these  aninuils. 

1  have  already  ]>resented  to  the  tribunal,  on  a  ])reviousday,  the  views 
f  entertain  as  to  the  true  history  of  the  claims  set  up  by  Kussia  relat- 
iiii"' to  the  ex('lusivt!  ri_i;ht  to  control  and  ])rofect  the  fur  industiy  in 
IJerinu'  Hea,  and  have  en(h'avore(l  to  state  ucneially  the  foundations  in 
law  and  fact  upon  whiith  Kussia  rested  her  claims.  1  will  ]u»w  again 
brietly  review  some  of  those  facts  as  I  believe  the,,  exist,  jual  will  refer 
toothers,  and  endeavor  to  cdniH'ct  tliem  with  the  doctrines  of  the  law 
which  I  think  are  clearly  anplicable  to  establish  a  right  of  ]>roperty  in 
the  fur-seals  that  is  wi'll  founded,  lititli  as  a  right  by  ])rescriplion  and 
a  rig'ht  growing  out  of  the  useful  and  donu'stie  nature  of  these  aidnuds. 

The  JJussiau  (jovernment  exercised  tiie  right  to  (»wn  and  control  the 
seals  that  resorted  to  Uering  Sea,  and  made  tem[)()rary  grants  to  its 
subjects  of  the  right  to  take  them  in  those  wateis. 

It  nuiy  be  said  that  this  was  an  assumjttion  of  right  <m  the  part  of 
Hussia  not  su]ip(iitt  d  by  any  ruh^  of  inlenuitional  law.  It  was  not 
nu)re  distinctly  an  assunii)ti()n  of  right  than  was  the  title  to  tlie  islands, 
based  on  the  di-iovery  of  them  by  a  IJussian  subject.  In  both  cases 
ii  initive  so\'ereii;ii1y  was  displaced  to  make  roctin  tor  the  claims  of 
ilussia,  li^'cked  by  suiieiiwr  force.  The  processes  of  ai>|)ropriat  ion  wei'e 
the  jsame  in  reference  to  the  seals  and  seal  fisheries  as  they  were  in 


;u  CON- 

.OWING 

(1  arj;"-  . 

ciiptive 

;lls  lllilt 

iitiinu'*! 
pei'uliai" 

hold,  on 
II  light 

he  views 
liii  rcl'.it- 
[\istry  in 
tions  ill 
>\v  again 
1\  ill  voter 
the  law 
(peity  in 
llioii  ami 
animals, 
ilvol  tiie 
Its  to  ilfi 

IKirt  of 
I  was  not 

islands, 
Itli  eases 
[aims  of 
lion  were 

wore  ill 


63 

reroronec  to  tlio  islands.  aIz.  disco\  <'iy.  claim,  oeenpation,  and  dovelop- 
nient.  Exclusive  use  and  the  ae(|iiiescenee  of  other  civili/ed  ])()wer.s 
were  the  attendant  facts  that  established  the  right  of  ])roi)t'ity  in  both 
cases. 

As  all  international  huv  grows  out  of  custom  and  has  no  other  root, 
it  can  not  be  denied  that  the  right  of  llussia  to  api)roi)riate  and  jnotect 
this  herd  of  rur-s((als  has  been  established  by  cifcstoin  and  maintained 
by  constant  and  ex<'lusive  use.  Certainly  no  other  nation  in  its  sov- 
ereign eliaracter  has  claimed  these  seals  or  <leiiied  the  right  of  Russia 
to  their  exclusive  (nvneisliii).  NVii'ii  (Ireat  IJiitain,  in  ISiM,  was  treat- 
ing with  Russia  for  an  open  sea.  free  navigation,  and  the  rights  of  iish- 
ing  in  those  waters,  she  set  up  no  claim  to  a  c(niimoii  right  of  huntiug 
seals  or  fur-bearing  animals  in  I  liose  regions.  IJiissia.  wenton  renewing 
her  charters  for  theses  purposes  to  her.  subjects,  and  (ireat  Britainstood 
by  and  made  no  assertion  of  sucii  rigiit  for  herself  or  her  subjects  for 
about  a  half  century,  Nearly  a  eenliiiy  elapsed  after  the  (;olonization 
of  the  islands  by  Russia  before  any  British  subject  opiiosed  the  claim 
of  IJussia  and  the  United  States,  her  vendee,  to  a  jirojierty  rightin  the 
seals  that  habitually  resorted  to  IJering  Sea.  There  are  few  custom- 
ary rigiits  that  ha^e  a  sur(;r  fouinlation  in  usage;  or  upon  the  doctrine 
of  aciiuieseeiice  than  the  world  has  accorded  to  liussia,  iu  rc-pect  of 
th(;  right  to  the  fur  seals  resoi'ting  to  ileiiiig  Sea. 

The  long  aeijuiesceiice  of  (ireat  r.iitain  in  tliis  claim  of  ownership  in 
s«'als  by  Iviissia,  was  not  (»iily  wilh(ail  oitjection,  jtrotest,  or  diplomatic 
suggestion  to  the  contrary,  Init  that  <  io\ cinmeiit  has  encouraged  her 
own  people  to  base  an  extensive  and  valuable  industry  upon  the 
material  ]tro\  ided  by  Russia  and  regularly  sujjplied  to  them  from  her 
fur-seal  husbandry. 

It  is  now  t  lo  late  Ibi'  ("Meat  Riitain  tosay  that  llnssiaand  the  United 
States  mistook  the  law  of  nations  wlu'ii  they  set  up  rights  of  ])roiterty 
in  fur-seals.  Ninety  years  ol  ac(piiescence  attended  with  no  harm  to 
British  peoph' or  interests,  Imt  with  great  benefits  to  botli.  is  time 
enough  in  wiiich  to  estalilish  tlie  consent  of(iicat  I'.iitain  tlial  live 
seals  resorting  to  Reiing  Sea  are  property,  as  niiieli  so  as  dead  ones  are 


that   are  slain    l>v    iliilish  subject.- 


!iit  tlie  a<'(piiescence  of  (ireat 


liritain  is  no|  needed  to  estal)lisli  tlie  jnopositiou  that  there  i<  properly 
in  Ii\  (•  seals  and  that  it  exists  ralioiic  soli. 


m 


m 


n-: 


mi 


p 
m 


64 


m  j. 


'i'llE  THIRD  QUESTION  IN  AKTKM/K  1  OF  THE  TREATY    SEHMS  TO  HAVE 

KEEN   AVOIDED. 

One  of  the  three  questions  suluuitted  to  aibitiat.  ii  Article  I  is  so 
(lei)eii(lent  for  its  deeision  ii])oii  tlie  (jiiestioii  of  prc/perty  in  fur-j.ejils 
that  it  shouhl  be  considered  in  connection  witli  it.  It  is  concerning- 
''the  rights  of  tlic  citizens  and  snlyjects  of  eitlier  conntry  as  regards 
the  taking  of  fur-seal  in  or  resorting  to  said  waters."  The  fcmnda- 
tion  of  such  jv  right  could  lie  none  other  than  a  vi:;li(  of  ])roi>erty  in 
the  seals  when  captured  or  killed  in  nonlenitoria,  waters — a  liglit 
acquired  by  the  capture  of  tlie  seal,  dead  or  alive.  The  final  analysis 
of  this  question  is  wlu-ther  a  right  of  jn-oiierly  can  attach  to  a  living 
seal  that  is  found  swinnning  in  the  ocean.  This  (juestion  is  noAvhcie 
presented  in  the  treaty  or  alluded  to  as  a  question  to  be  submitted  to 
the  Arbitrators,  except  in  the  lirst  article.  It  is  the  postulate  stated 
by  Great  liritain  in  these  contentions,  around  which  every  fact  and 
every  princi})le  of  law  asserti'd  by  (Ireat  Ibilain  is  grou])ed. 

If  British  subjects  have  the  right  of  taking  lur-seals  in,  or  iiabitually 
resorting  to,  Bering  Sea,  it  maizes  liirle  dilVeiciice  wliat  tlie  rights  of 
the  United  States  may  be,  for  tliey  would  anioimt  to  nothing  ])rac- 
tically,  and,  in  theory,  such  ii  riglit  would  destroy  all  the,  giounds 
on  which  the  United  States  couhl  rest  a  claim  to  the  right  oi'  protect- 
ing the  seals  outside  the  ordinary  .Smile  limit. 

This  <piestion  is  su])mitted  Ibr  decision  in  snch  bioad  form  as  to 
include  "the  rights  of  the  (;itiz<'ns  av  snbjt-^-ts  ol'  either  country,  as 
regards  the  taking  of  fur-seals  in,  or  hal»iif.ually  resorting  to  said 
waters." 

The  statutes  of  the  t'nited  Stales,  following  the  unqualilied  asser- 
tions of  liiissia  while  she  was  owner  of  these  islands,  assert  the  owner- 
shi])  of  the  United  States  in  the  liir  scab,  found  in  the  Bcu-ing  Sea,  and 
base  upon  that  ownership  a  governmental  industry  of  gicat  value  to 
the  revenues.  They  i)unisl)  willi  severity  any  jierson  who  destroys 
tins  property  or  interferes  willi  liie  agents  or  lessees  of  tin>  United 
States  in  its  nujuagement,  ami  they  provide  Ibr  the  le;i>e,  to  tiieir  own 
citizens  under  careful  regiiiations,  of  the  privilege  ot  taking  seals. 

Great  Britain  has  not  assume<l  an<l  could  not  assmne -nch  a  relation 
as  that  to  tlie  fur  seals  in,  or  resorting  to,  Bering  Sea,  because  it  can 
not  claim  them  ratiouc  soli.  It  set  up  no  claim  of  ownership  in  the 
fur-seals.  l)ut  denies  that  ownerslii|)  in  them  i-  .o^sH'!'-  niitil  the  ani- 
luaiia  have  been  captured  or  killed. 


55 


•O  HAVE 

le  I  is  so 
I'ur  .seals 
nccrniiig" 
1  icinards 

Ibuiidii- 
pcity  ill 
-a  ritilit 

analysis 
)  a  liviuji" 

lunvlicrc 
nittcd  to 
to  stated 

fact  and 

abitually 

liquids  of 

ing  ])iae- 

grounds 

protect - 

III  as  to 
on  try.  as 
to  said 

ed  assev- 

le  owner 

Sea,  and 

value  to 

desti(»ys 

le  United 

tiieir  own 

eals. 

a  relation 
ise  it  <an 
lii))  ill  tlie 
1  Llie  ani 


Tlic  respective  conntries  oceiiiiy,  tlieiefore,  very  different  relations  to 
this  subject.  A  declaration  of  the  rij^lit  in  favor  of  tlie  citi/.eiis  of  (he 
United  States  to  take  fur-seals  in  Berinji'  Sea,  if  made  by  this  tribunal, 
is  ,1  declaration  that  the  statutes  of  the  United  States  tliat  tbiliid  sncli 
taking  are  of  uo  validity  and  should  be  repealed,  while  tlie  same 
declaration  when  made  in  favor  of  Ibitish  subjects  is  in  ])erfect  accord 
with  the  laws,  policy,  and  (toiitentions  of  that  country. 

This  obvious  in)i)edinient  to  a  decision  as  to  the  right  of  pelagic  seal- 
ing in  Bering  Sea,  under  which  the  ))owerof  the  United  States  over  her 
own  citizens  Avould  be  called  in  question,  confines  tlie  iiKiniry  to  tiie 
simple  ])roposition  w  hether  the  United  States  liave  a  ]>roperty  in  the 
seals  in,  (»r  habitually  resorting  to  Bering  Sea,  ami  the  nature  of  that 
property. 

The  crucial  test  of  the  rif.  itt  of  the  I.^nited  States  to  property  in  fur- 
seals  that  r<'sort  to  Bering  Sea,  whetlier  that  I'iglit  implies  a  jierlect 
ownership  of  the  seals  or  an  interest  in  the  usufruct  of  the  lierd  tor  the 
support  of  a  legitimate  and  useful  industry,  is  imuh^  l>y  tlie  treaty  to 
turn  upon  the  question  whether  British  subjects  have  tlie  unrestricted 
right  to  take  seals  on  the  high  seas  as  free  swimnring  animals  tlrat  aic 
ferw  natura\  This,  therefon',  is  the  main  (]iiestion  in  thi^  ease,  and 
draws  within  its  inilu'Miee  every  other  (|uestioii  presented  to  theTril)u- 
nal  of  Arbitration,  except  those  questions  that  relate  peculiarly  ti> 
Meriiig  Sea,  I  have  already  discussed. 

This  chiiiu  of  right  to  take  fur  seals  on  the  high  seas  is  asserted  as  a 
private  and  personal  right  of  every  person  who  goes  upon  the  high  seas 
under  a  recognized  national  Hag;  and  the  employment  (d'  the  Ihig  for 
that  ])uri»ose  is  lud  re(piired  to  be  legitimated  by  a  liceus(>  to  tish. 

No  governnu'iit  has  asserted,  or  ever  will  assert,  tlie  right,  as  a  gov- 
ernment, to  employ  its  sovereign  powers,  or  its  war  tieets.  in  tliis  Inisi- 
ness,  for  the  purpose  of  increasing  its  n'xcnues.  Such  eoiidiift  by  a 
j5i)vernnient  would  be  I'cgarded  as  a  disrepn(al)I(>  invasion  of  the  higli 
seas  for  its  own  aggrandi/ement  and,  w  hen  it  sliouid  come  in  conflict 
with  till'  inteiests  of  the  people  of  other  count  lies,  the  iii\a>ioii  would 
be  regarded  as  a  national  otl'ense. 

The  case  would  be  (juite  dilferent  if  tlh'  purpose  of  the  go\(M':iient 
was  to  protect  a  bona  fide  claim  of  propeiv  •  in  svals.  agiiiii  I  (h'stiuc- 
tion.  If  in  quest  (d'  seals  to  '\  hieii  no  claim  o;  juoperty  was  ussei  ted  by 
a  government  it  should  send  »:Mt  its  Meets  >  >  gather  revenue,  or  to 
destroy  such  property,  claimed  by  another  govt  rnnuui,  the  necessary 


56 


result  would  be  a  distuvbiiuro  f)f'  tlic  ])oaf'C  aud  ]>r<)l)al)ly  a  hostile  col- 
lision. Tije  case  is  altered  in  degree,  but  not  in  its  uature,  wlieu  a 
j^overniiient  sustiiins  aud  adopts  the  rights  ol'  its  people  to  destroy  a 
l)roi»erty  or  industry  claimed  by  aiu)ti»er  nation.  If  such  governuient 
(•(Mild  not,  under  the  usiige  of  nations  or  just  princijjles  of  interna- 
tional law,  thus  enrich  its  treasury,  it  is  dif1i(!ult  to  see  on  what  prin- 
ciple it  could  support  its  peoijle  in  such  conduct  for  their  private  gain. 
In  either  case  the  seutinuMit  of  justice  entertained  by  the  civili/ed 
luitions  would  sustain  the  power  that,  in  good  faith,  cliiinied  the  right 
to  own  and  imttoct  the  fur  seals  ibr  the  benefit  of  the  commerce  of  the 
world,  ratlu'r  than  the  nation  that  denied  th(>  right  of  i)r()perty  in 
seals,  until  tiiey  are  captured  and  killed,  and  (daimed  the  right  tomake 
property  of  them  only  by  indiscriminate  and  destructive  slaughter. 

In  this  treaty,  and  in  uU  the  diplomatic  contentions  that  have  led  to 
its  conclusion,  both  (Jovernnu'uts  have  admitted  that  i)iop(n"ty  in  seals 
nuiy  be  ac(]uired,  ])rotectcd,  and  preserved,  at  least  to  the  extent  of 
protecting  and  preserving  them  by  their  coiu'urrent  regulations,  and 
they  have  agreed  to  apply  the- e  conceded  facts  to  certain  seals  that 
habitually  resort  totiie  waters  of  JJering  Sea.  Tiiese  questions  are  vir- 
tually removed  from  the  tield  of  doubt  or  disputation  by  the  terms 
of  the  treaty  under  which  the  Tribunal  of  Arbitiation  is  acting. 

Great  Britain  now  asserts  that  the  ])roi)erty  in  seals  can  beac(]uired 
only  by  capture,  which,  uiidci'  the  practice  of  pelagic  hunting,  as  con- 
ducted by  its  subjects,  means  that  such  luoperty  can  be  ac(piired  only 
by  killing  the  animals. 

The  United  States  asserts  that  property  in  seals  may  be  acquired 
while  they  live,  and  without  actual  capture.  As  to  the  right  of  prop- 
erty in  the  individual  animals,  this  is  the  only  form  of  issue  that  is 
j(»ined  between  tlie  parties  to  this  treaty. 

As  to  the  ])ro]»er  i>rotection  and  ])reservation  of  seal  life  to  which 
the  (Governments  are  both  solemnly  pledge*!  in  this  treaty  (Ireat 
]iritain  c(Uitends  that  taking  them  at  sea  is  a  better  method  than 
taking  them  on  laml,  and  is,  therefore,  the  i)roper  method;  while  the 
United  States  claim  that  the  onlymetliod  of  taking  seals  that  can 
properly  protect  them  is  by  selecting  the  animals  for  slaughter,  aud 
that  this  can  be  done  on  the  land  and  can  not  be  done  in  the  water. 
The  killing  of  the  auinmls  is  included  in  ea(di  of  these  contentions  as 
the  only  way  in  which  they  can  be  made  useful  to  imudiind;  and  the 
I'Dir,  phicr,  ((ltd  )inlh(,d  of  liUiiitj  lliciii  that  is  hcut  adapiid  to  the  protcc 


67 


(•(juired 
)s  con- 
(1  only 


which 
(Jrcat 
1  than 
ih'  tlie 
lit  can 
cr,  and 
water, 
ions  as 
md  the 
protec 


lion  and  pn'scrroiinv  of  ncals  in  ihr  cJass  or  licrd  llial  hahilually  resort 
to  the  waters  of  licrinj''  Sea  is  the  real  inijuiry  "(•niiccrniny  the  pres- 
ervation of  the  fur  seal  in,  or  habitually  r<'sortin.u  to,"  lU'ring  Sesi  that 
is  submitted  to  the  Arbitrat<ns.  All  the  otliei-  (luesdons  i)resented  for 
consideration  or  decision  by  tlie  AibitiMlors  relate  alone  to  (lie  i»owers 
that  either  Government  may  employ  and  their  Jurisdictional  ri<;hts  to 
i'ul'orce  their  iX'siiective  contentions,  or  that  both  should  emjtloy  con- 
cUiTently,  to  protect  and  preserve  seal  lif(>,  outside  of  their  territoriii 
limits. 

Is  it  true,  as  it  is  asserted  by  the  TJin'ted  States,  that  ])ro]ierty  in 
fur  seals  may  be  accjuired  while  they  are  alive  and  without  acitual 
capture?  That  (iei)ends  to  a  great  device  u[>()n  the  value  of  the  uses 
to  which  tliey  are  i)ut  and  the  certainty  and  ri',nularity  with  which 
they  may  be  subjected  to  those  uses,  and  these  considerations  relate 
to  animals  as  classes,  and  to  tiieir  habits  as  a  class,  and  not  to  tlie 
l)eculiarities  of  the  individuals.  Some  individuals  are  fre<iuently  found 
among- aninnils  that  are  everywhere  classed  as  domestic  which  arc  as 
wild  and  fieicc  (or  timid  as  the  case  may  be)  as  the  wildest  of  aiumals, 
such  as  horses,  cattle,  sheep,  swine,  poultry,  and  dogs.  And  some  of 
the  wildest  and  most  fero(!ious  animals  have  becMi  so  domcsticndMl  by 
training'  as  to  become  harmless,  and  even  serviceable,  or  ])rolitablc  in 
a  high  deg'i'ce,  such  as  hunting  leojyards,  hawks,  coiinorunts,  elephants, 
and  even  bears,  lions,  and  tigers.  IJut  these  exceptional  instances  of 
domestication  by  training  prove  notliing  as  to  the  general  nature  or 
habits  of  the  classes  of  animals  in  which  tlu^v  are  found. 

If  a  class  of  animals  is  valuable  for  the  uses  of  mankind  and  is,  by 
habit,  drawn  within  reach  of  man  ])eriodically,  with  regularity  and 
certainly,  the  nation  that  thus  ac(]nircs  a  settled  and  ])cculiar  power 
of  control  over  it  on  land  may  base  a  legitimate  industry  upon  the  mate- 
rial it  attbrds,  and  may  declare  the  animals  to  bc^  its  pro])crty,  A 
nation  so  situated  nniy  certainly  make  sucli  an  assertion  and  di'clara- 
tion  of  ownership  in  the  entire  class  of  such  animals  as  against  the 
right  of  its  own  peo))le  to  treat  tlicm  as  being  wild  animals  and  jv\ 
ni(ll!ii.s,  and  in  that  sense  and  to  that  extent  at  least  it  may  exercise 
ownership  over  them  without  capturing  them.  Animals  that  are  classed 
as  being'  domestic,  are  ])r(»tected  by  a  legal  ]>resum])tion  of  ownership, 
however  wild  they,  in  fa(;t,  may  be.  Animals  domesticated  by  train 
ing  are  sheltered  by  the  same  presumption  of  law,  until  they  have 
resumed  their  wild  <tonditi(ni. 

Wild  animals,  called  game,  are  not  i)rote(ted  by  legal  fictions  but 


:.   i 


58 


by  ]('.i;isliitiv(^  (•iiiicrmciit.s.  'I'licir  protection,  wlicii  it  is  arrnrdod, 
jiiust  be  by  liiw,  b('(!aus(i  it  tinichcs  upon  the  natiMiil  iij;lits  of  tho 
people  lo  ('iii)tm'(>  and  ai)propiia(('  tliein.  Tlie  State  assumes  a  ri;4lit 
(»f  public  appioprialitin,  and  d('i)iivcs  its  subjects  of  tlie  iij>lit  to 
appropriate  such  anirials  and  regulates  or  prohibits  its  exereise.  If 
the  State  takes  the  further  step  of  declaring;'  by  law  that  it  has 
ai>pr()[)riated  these  wild  animals  to  tlie  uses  of  (loverniueut  and  tliat 
its  possession  and  ownership  aw  complete  by  le;4al  eonstruetion  and 
without  takin,!;"  actual  i^ossession  of  them,  they  become  the  prop- 
erty of  tlu^  State  wherever  those  laws  are  in  force.  Thus  all 
<;ame  laws  are  based  on  the  soverei,i;n  rij>ht  to  appropriate  wild 
aniuials  by  the  state.  This  ri.yht  of  jjoveriiment,  lor  it  is  sucdi  a 
ri^ht,  is  illusti'ated  ifi  a  Ibrcible  way  by  laws  f^ivini-'  bounties  for  the 
destruction  of  wolves  and  other  predatory  animals.  If  a  nmn.  for 
reasons  of  iiis  own.  should  claim  that  he  was,  rafiaiic  .soli,  the  owner  of 
a  ca\e  tliat  slultered  wolves  and  tlieretbre  of  the  wolves,  he  could  not 
resist  the  rii^ht  of  tlie  states  to  cause  tlieir  destruction  in  accordance 
with  hiw,  even  in  the  cave  wheic  they  were  bred  but  left  uncon- 
lined  to  go  forth  at  will  and  maraud  upon  tlie  i»ro])erty  of  others. 

The  i>ower  of  the  state  in  su<'h  case  is  not  based  on  its  judicial 
function  of  suitpressinj^'  nuisance,  but  ou  its  ownership,  when  it  chooses 
to  assert  it,  over  wild  animals. 

It  may  be  and,  in  a  gcMieial  seuse,  it  is  true  that  tln^  i)rivate  owner 
of  the  soil  on  which  a  wild  animal  is  bred  can  ouly  acquire  actual 
property  in  such  aninnd  by  its  capture,  but  that  is  far  from  being  true 
as  to  the  sovereign  jmwer  in  a  state.  A  state  that  can  not  dispose  of 
what  is  res  nHUiu,s,  within  its  own  Jurisdiction,  is  wanting  in  an  essen- 
tial power  of  sovereignty.  It  could  not  otherwise  disjiose  of  escheats, 
waifs,  derelicts,  or  forfeitures  that  occur  without. judicial  procedure,  as 
many  do  occur.  If  these  ]>rop(isitions  are  true  it  is  uu(<uestionable 
that  a  state  may  acquire  pr(q)erty  in  anything  susceptible  of  ownership 
that  is  res  iniUius,  Ibund  within  itsjnrisdiction,  by  a  sintple  declaration 
of  law  and  Avithout  taking  it  into  actual  possession.  The  projjerty  so 
acquired  is  the  creature  of  n»unici])al  law. 

The  United  States  has  done  all  that  is  nec(\ssary  to  establish  its 
ownership  of  fur-seals  by  niuidcipal  laws  that  are  <q>erative  against 
eveiybody  within  the  limits  of  their  Jurisdiction,  whether  those  limits 
include  all  the  waters  of  J>eringSea.  or  (udy  the  land  and  waters  vtith- 
iii  the  ordiuary  3-mile  limit.     Within  those  limits  this  declaration  of 


59 


Eipcnrdcd, 
its  of  the 
!S  a  riji'lit 

ri;;lit  to 
'icisf.  If 
at  it  lias 

and  that 
ction  and 
the  prop- 
Thus  all 
iate  wild 
s  such  a 
cs  for  the 
I  man,  ihv 
i  owner  of 
could  not 
(M-ordaiice 
ft  uncoii- 
liers. 

s  jndieial 
it  chooses 

ate  owner 

ho  actual 

)ein<;'  true 

lisposo  of 

an  essen- 

escheats, 

edure,  as 

stionable 

wnership 

daratiou 

operty  so 

;il)lish  its 
e  ii.L;ainst 
ose  limits 
ters  with- 
1  rat  ion  of 


the  supicMiic  Ici^isliiture  esfiildislics  pro]»orty  in  fiir-sciils  iind  appropri- 
;il('s  it  to  tlic  I'liilcd  SIntcs  wliih'  llic  sciils  arc  living'  :ui(l  wiliioutthe 
necessity  of  c.iptiMin;^'  tlicni.  Wiicn  tliis  ])ropcrty  is  found  outside  the 
liniits  of  the  jtiiisdiction  of  llie  I'nitcd  States  tlie  (|Mcstioii  arises  for 
tiie  first  time  iis  to  how  far  the  people  of  othei'  countries  are  bound  to 
resjicct  the  title  asserted  l»y  tlu'  United  States.  As  to  tlie  people  of  the 
United  Slates,  they  are  bound  to  rcs|)cct  lliis  titU'  of  tlieir  (iovcrnment, 
if  so  required  by  law,  wlierexer  their  allej>'iaiu'e  binds  tliem,  and  the 
law  does  bind  them  to  respect  the  property  of  the  United  States  wher- 
ever it  may  be  lound. 

No  rule,  code,  or  system  of  law.  miiniciital  or  iiiternatioiuil,  is  jtre- 
scribed  or  alliiilc(l  to  in  tlie  treat>-  as  the  .yuide  of  the  tribunal  in 
dctei'miniuii'  any  (lucstion  submiltcd  to  them. 

The  only  allusion  that  is  made  in  the  treaty  to  laws  or  ,jurisi>rudciu'e 
is  that  the  Arbitrators ''should  be  Jurists  of  distinguished  reputation 
in  their  respective  countiics."  This  i'e(piirem<'nt,  as  well  as  the  iuilur<^ 
of  the  subject, (luestions,  and  jjoints  submitted  to  the  tribunal  for  exam- 
ination, is  a  suflicicnt  iiidicnition  that  where  the  re(!o<jiii/.e(l  principles  of 
international  law  or  the  nninicipal  laws  of  the  respective  countries 
furnish  a  basis  and  ;.iuide  to  ascertain  and  admeasure  the  rij^hts  of  the 
respective  treaty  powers,  they  shall  l»e  lblh»wcd.  iJut  if  there  are 
uot  such  i)rcce(lents  and  enactments  the  declaration  of  their  resi)ective 
ri<;lits,  outside  the  limits  (»f  their  ex<lusiveJurisdi(;tion,  is  within  the 
eom])elence  of  the  tribunal,  and  also  the  dechiration  of  their  duty 
eoncernins"  the  protection  and  prcservarioii  of  the  fur-seals  in  (iiU!stion. 

The  Unit»'(l  States  assert  their  ri.!-'!)!  of  pioperty  in  tlui  fur  seal  in 
question  while  thcsy  are  alive  ami  without  the  incident  of  actual  cap- 
ture : 

Fi):sf,  as  a  ri<iht  by  i)rescriptioi)  derived  iVoin  IJussia.aud  acquiesced 
inby(;reat  Jiritain;  and  their  useliiliu'ss  to  the  (jovernment  and  the 
people. 

/Second,  as  a  right  established  by  law  within  its  domain,  that  is  not 
im[)aired  by  the  necessary  and  temporary  absence  of  the  seals  in  searcdi 
of  food,  tither  while  they  are  inhabiting  the  seal  islands,  or  when  they 
retreat  from  them  on  their  winter  excursions  into  the  Pacific  Oceati; 

Third,  as  a  right  of  property  that  is  the  necessary  result  of  the 
habits  of  the  animals,  and  their  natural  and  compulsory  relation  to  the 
rribih)rt'Islaiuls; 

Fourth,  as  a  right  of  i»roperty  growing  out  of  the  iiocossity  of  gov- 


.     I 
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33  WEST  MAIN  '..>V4ET 

WEBSTER, NY.  MS80 

(716)  873-4503 


«, 


60 


!!■ 


crnmciital  control  of  tlu^  fur  seals,  to  prevent  tlieir(les.truetion,aTi(l  the 
alleged  fact  tliiit  such  control  <-iin  be  elliricntly  exiTcised  only  by  the 
Government  wliose  territory  is  oeenjiied  by  them  at  their  birth,  and 
while  tiiey  are  their  urojx'rty,  rationc  impotent  in; 

Fifth,  as  a  right  of  property  based  on  the  fact  that,  with  tin*  acqnies- 
cenec  of  ail  nations,  estal)lished  by  the  fa<'t  that  no<»l>iection  or  jirotest 
was  mad*'  or  a<lverse  ?>ctiu"  'vas  taken  by  any  inition  for  a  period  of 
ninety  years,  an  industry  was  established,  depending  for  its  s),p]>ort 
upon  the  preservation  of  the  stock  of  fur-seals,  whieii  will  bo  de.sln)yed 
if  indiscriminate  jiehigic  hunting  is  further  i)ermitted. 

Tliis  is  the  lirst  international  controversy  that  has  arisen  as  to  the 
right  of  iu'oi)erly  in  or  protection  of  fui-seals.  and  there  is  no  <*ase,  in 
point,  to  whicli  referenct^  can  be  made  as  settling  the  law  of  nations  on 
the  subject.  IWit  there  is  r.o  right,  recognized  by  internati«)nal  law, 
that  is  op])()sed  by  the  case  of  (Jreat  Britain  to  either  of  these  claims  of 
the  United  States  to  the  ownership  of  the  fur  seals  in  (juestion,  except 
the  riglit  of  free  fishing  in  the  open  sea.  This  rigid  is  claimed  for  its 
subjects  by  the  (lovernment  of  (]reat  Britain,  and  is  made  to  include 
fur-seals,  as  fre(!  swimming  animals, /fnt  natura: 

'V\h\  universal  light  of  free  fishing  in  the  ojien  sea  is  established  in 
the  custom  of  iiati<uis,  which  is  the  law  of  nations,  and  is  not  disputed 
by  the  Tiiitcci  States  when  it  is  <'ondu<  ted  in  a  Just  and  reasonable 
msinner  ami  against  fishes  or  aniimils  that  are  rcn  nulliiis. 

The  free  right  of  fishing  can  not  be  «'xercised  to  nmke  a  lawful  cap- 
ture of  fur-seals  if  they  are  not  wild  animals,  or  if  they  are  aninnds 
wild  in  their  nature,  but  have  been  lawfully  a]>iu"opriat<'d  by  a  govern- 
ment and  are  at  large  in  the  ocean  with  the  ]>nrpose  of  returning  to 
the  dominion  of  the  owner,  or  under  the  c(unpulsi()n  of  an  instinctive 
necessity  for  letuiJiing  to  tlie  «lominion  of  the  owner,  which  the  ani- 
nnds  habitually  and  ])eriodically  obey. 

The  right  <'laimed  by  (Ircat  Britain  is  in  every  sense  a  right  to  hunt 
and  to  kill  game.  The  seals  are  never  taken,  as  scMuetinu's  fishes  are, 
for  purposes  of  i)ropagation,  but  only  for  their  value  when  they  are 
killed.  The  arts  of  fishing  with  hook  and  line  and  bait  are  never  ])rae- 
tice<l  as  to  fur-seals  an«i  would  be  utterly  witlnuit  success.  Catching 
them  with  seines  or  nets  isinijtractic'able  as  an  industry  and,  when  prac- 
ticed, only  snudl  animals  are  captured  and  none  are  taken  alive.  That 
is  only  a  method  of  capturing  them  by  drowning.  The  death  of  the  giame 
is  the  only  means  of  capture  at  sea,  and  that  is  conducted  with  the  liar- 


ion,  and  tlie 

>ii1y  by  the 

birth,  and 

thi'iU'qnios- 

tn  or  protest 

ii  period  of 

itH  support 

le  de.slroye<l 

Ml  as  to  the 
4  no  case,  in 
nations  on 
ational  hiw, 
'se  claims  of 
tion,  except 
limed  tor  its 
B  to  include 

tablished  in 
»t  dispntetl 
reasonable 

awfnl  eap- 

ire  aninnil» 

y  a  fjovcrn- 

etnrniiiff  to 

instiiu'tive 

h  the  ani- 

rlit  to  linnt 
lishes  are, 
n  tiiey  are 
lever  )»rac- 
<!atchinp 
rt  hen  prae- 
ive.  That 
f  the  game 
b  the  har- 


61 

poon  and  the  gun — deadly  weapons.  The  hunter  atta<*l<s  every  seal 
within  rangtM>f  his  weapons  without  discriniimition  ur  forbearance.  His 
success  depends  entirely  upou  indiscriminate  atta(;k  and  slaughter,  for 
ho  can  do  no  less  than  that  if  he  hunts  widi  any  success.  His  forbear- 
ance, after  ho  has  captured  his  game  with  seine  or  hook,  may  release  it 
alive  if  it  is  found  to  bo  under  age  or  size  and  it  will  grow  to  its  t'ull 
size;  but  capture  of  the  fur  seal  in  the  oiien  sea  is  sure  aiul  instant 
death,  and,  as  to  the  herd  or  species,  it  is  swift  an<l  inevitable  destruc- 
tion. 

If  this  is  "free  tishirig"  it  is  such  tishing  as  no  civili/ed  nation  woidd 
tolerate  within  its  own  territory  in  respect  to  any  fish  ov  wild  animal 
as  useful  and  as  helpless  as  fur  seals.  No  civili/ed  nation  that  has 
seal  rookeries  within  its  territory  has  omitted  to  provide  laws  for  their 
protection  against  such  hunting  to  the  lull  extent  of  its  jxiwers.  The 
indiscriminate  killiny  of  furseuh  is  not,  and  never  icHl  be,  mnct  toned  by 
the  statute  laics  of  any  eivihzed  country. 

This  right  of  indiscriminate  slaoghter  of  fur-seals  on  land  and  sea 
can  only  be  traced,  and,  in  this  case,  has  only  b«'en  traced,  as  to  its 
origin,  to  a  custom  of  the  savag**  Indians,  who  weie  Ibrccd  to  adopt  it 
as  a  means  of  living.  It  is  said  to  have  thus  gained  its  root  in  the  law 
of  nations.  Civilized  nations  that  Inivo  gained  dominion  over  these 
savage  tribes  have  taken  control  of  the  subject  and  have  revcrseil  these 
laws  of  the  savages  in  their  ap|)lication  to  their  civili/ed  subjeits,  and 
have  forbidden  them  to  enjoy  this  unrestrained  privilege,  lint,  in  some 
instances,  they  have  permitted  the  savages  to  continue  the  nractice, 
because  it  is  conlined  to  short  distances  from  the  shores,  and  is  con- 
ducted with  such  weapons  and  in  such  manner  as  is  not  seriously  det- 
rimental to  the  fur-seal  spe(!ies.  Moreover,  the  fur-seals  are  a  source 
of  Ibod  supply  and  of  raiment,  to  deitrive  them  of  which  wouhl  imperil 
their  existence.  It  is  also  cheaper  to  permit  their  sli^^lit  raids  on  the 
fur-seals  than  it  woidd  be  to  feed  and  clothe  them. 

Finding  this  right,  of  savage  origin,  thus  toibidden  or  restrained  by 
the  nninicii>allaws  of  all  nations  interested  in  the  subject,  and  that  tho 
uniform  course  and  current  of  public  oitinion  of  the  nations  is  directed 
to  this  end  for  the  purpose  of  preserving  the  fur  seal  speities,  are  we  to 
conclmle,  in  the  absence  of  any  direct  or  conclusive  rule  of  interna- 
tional law,  that  there  is  a  princi[>le  or  rule  to  be  ibuntl  in  the  laws  of 
nations  that  sustains  and  uphohls  the  unrestrained  right  as  it  existed 
among  the  t>avaj;us  to  hunt  or  lish  ior  fur  seals  in  the  open  bca  in  a 


62 


way  anrl  nt  timos  and  jjlaccs  wlu'ie  tlie  pra<'ti<'<>  insures  tlic  speedy 
aestriiction  of  the  siHMies! 

The  iiitenintioiiiil  hiw  is  a  growth,  and  if  is  diieetcd  and  shajied  by 
the  exiicrieiue  and  (he  sedate  Jii(l<;iiieiit  ot  iiiaiikind.  In  its  growth  it 
lijisdispliieed  many  riiles.and  dogmas  that  have  proven  to  l)e  iiiipedi- 
iHcntsto  the  niarcli  of  civilization.  Among  thtr  most  important  ofthcse 
concrete^  ruh-s  that  liave  thns  been  <h'tliront'd  is  that  hi  w  ofiiations  whi<;h 
gave  to  L'ussia  the  right  to  dcirJare  tin;  Sea  of  Okhotsk  and  IJering 
Sea  to  l>e  (dosed  seas.  'Ihat  was  tlie  international  hiw  when  tliey  wi-rc 
dis<'ov4'red  and  oeeii])ied  l)y  that  power.     It  lias  siiiee  been  changed. 

liussia,  in  l.Sli4,  yi<'ided  tliat  chiim  to  tlie  a<lvaneing  growth  of  inter- 
Jiationa!  hnv,  but  did  not  yiehl  to  pelagic  liunters  the  right,  in  tliose 
waters,  to  destroy  fur  seals  indiscriminately.  liussia  saw  that  the 
sentiment  of  tlie  world,  to  which  she  suriendeied  the  right  of  free 
fishing  and  free  navigation  in  Beiing  Sea,  would  protect  lier  against 
the  tiien  unnxMitioned  and  unclaimed  light  of  visiting  destruction  upon 
her  seal  IickIs  and  the  industry  they  supported,  upon  the  pretense  of 
the  right  of  free  tishing..ccordetl  to  the  I'nited  States  and  (Ireat  liritain. 

In  this  formative  and  progressive  growth  of  international  opinion  it 
amy  well  be  asserted  that  the  right  ot  pelagic  hunting,  with  its  attend- 
ant right  of  indiscriminate  slaugiiter  of  fur  seals,  has  lost  the  authority 
of  its  anuent  origin  among  savages  and  is  no  lunger  a  concrete  i  ule 
or  priiM'iplc!  or  even  a  reputable  dogma,  of  int«'riiational  law,  in  the 
ai»plication  that  (ireat  liritain  makes  of  it.  Internal  ional  law  is  based 
on  the  sanu'  lecogni/ed  elements  of  rijiht  g(»\  eminent  that  are  at  the 
foundation  of  nearly  all  the  municipal  laws  of  the  great  civilized 
powers.  This  concoidance  in  the  elements  and  striictuieof  the  two  sys- 
temsof  law  is  established  by  many  rules  that  are  common  to  the  munic- 
ipal laws  of  such  nations.  In  none  of  tiiem  is  there  a  clearer  or  more 
<lislinctly  rec(»g.;!zed  doctrine  than  that  of  lights  acquired  by  prcsiiip- 
tioii. 

In  the  English  common  law  an  abso'ule  title  is  acquired  to  any  pioji- 
erty  afler  it  lias  been  in  the  open  possession  of  the  occupant  and  those 
holding  under  him  for  the  period  of  twenty  years.  This  is  a  rule  of  re- 
jxise  a<loplcd  for  the  ])eace  of  society.  In  those  features  it  is  even  more 
useful  between  nations  than  it  is  between  individuals.  So  ])otentis  this 
rule  that  the  courts  of  both  countri<'s  have  uniformly  declared  that  any 
grant,  will,  deed,  or  statute,  will  be  eonelusively  presumed  to  exist,  that 
is  necessary  to  sui)port  the  title  of  the  party  who  has  held  uninterrupte'l 
possession  for  twenty  years. 


63 


tlio,  speedy 

(1  shaped  by 
ts  gi'owtli  it 
)  be  iiiipedi- 
taiit  oftlicsc 
atioiisw'iieli 

and  IJeriiiji: 
ill  they  were 
I  chaiifjfcd. 
iwth  of  inter- 
;lit,  in  tliose 
aw  tliat  the 
right  of  free 
;  lier  aj^ainst 
ruction  upon 
■  pretense  of 
ireat  IJritain. 
lal  opinion  it 
til  itsattend- 
he  anthoiity 
oncrete  i  iile 

law,  in  the 

law  is  iiased 
at  air  at  the 

at  civili/ed 
lie  two  sys- 

>  tiie  ninnic- 
cr  or  iiKne 
•ypiesiri|.- 

o  any  pro])- 
lit  and  those 
a  rule  of  re- 
is  even  more 
Kilentis  this 
ed  til  at  any 
o  exist,  that 
linterruptcd 


No  just  reason  «'ai;  be  stated  why  this  wliolcsoine  rule,  founded  in 
the  i-ublicpolicy  of  both  eountncs,  should  not  apply  to  tin- international 
rifthts  in  controversy  between  them,  and  should  not  ineliide  every 
interest  in  any  property,  industry,  or  privilej^e  that  has  been,  for  the 
]>criod  of  pres(«'i|)tion,  in  the  i-xclnsiv*',  control  and  enjoyment  of  the 
claimant.  Theopposing  ri<;lits,  what(;ver  they  nuiy  be, are  lost  under  a 
conclusive  i)i'esiiinption  of  a  superior  title  in  the  a(!tiial  occupant. 

For  more  than  seventy  years(  Ireat  Britain  stood  by  a  ml  fully  niideistood 
that  K'nssia  had  the  exclusive  nsufnict  of  the  Alaskan  seal  herd  ami 
the  exclusive  <*oiitr(»l  over  them  without  inakiiijLj  any  qnestioii  of  that 
right.  If  the  property  hiid  been  an  isliiiul  in  tin*  sea,  to  which  irieat 
Britain  had  the  actual  prior  right  by  tliscovcry  ami  o(!cnpation,  her 
title  would  have  been  lost  if  she  Inul  sulfcrcd  Hussia  to  occupy,  (rlaiin, 
and  hold  tiie  island  for  twenty  years  under  an  open  and  uninter- 
rupted possession. 

The  theater  on  which  these  eonfli<'ting  rights  are  eidbn'ed  has  much 
to  do  with  the  limitations  and  restrictions  under  which  they  ani  to  be 
exercised,  if  the  animals  are  fvnv  imfmcv  and  are  so  classed  by  this 
tribunal.  If  such  animals  leave  the  land  on  which  they  were  raisiul, 
and  are  fbiiiid  and  killed  on  the  land  of  another,  they  belong  to  him  (Ui 
whose  land  they  are  killed,  because  they  are  presumed  to  havcescai>cd 
to  a  new  place  of  haliitation,  and  the  owner  of  that  placte  takes  them 
rutiona  soli,  as  if  tlu'y  had  been  born  and  raised  on  his  laml.  IJiit  if 
they  are.  killed  on  the  highway  they  are  the  pro|>crty  of  him  <»ii  whose 
land  they  were  born  and  raised,  unless  they  are  shown  to  have  escu[>ed 
from  his  land  in  (piest  of  their  former  lieedom  or  under  the  wild 
instinct  of  going  at  largo,  free  from  man's  control. 

If  seals  are  niad(i  property  by  the  laws  of  the  llniled  States,  and  are 
found  on  the  ocean  tra veiling  in  search  of  food,  the  owner  has  the 
right  to  bj'i  there  and  to  take  care  <»f  them.  If  his  presence  is  not  nec- 
essary, bec^ause  it  is  useless  tor  tlu^  purpos(>  of  protecting  tlicm.and  if 
they  are  idcntilied  as  the  seals  that  lialiitually  resort  to  the  rii])i|(»r 
Islands  by  tlieir  being  found  in  the  eastern  part  of  the  ocean,  the 
l;iw  regards  the  animals  as  being  in  tlui  (Muistiuctive  i>ossessioii  of 
the  owner.  Upon  this  rule  of  constructive  jmssessioii  the  security  of 
all  commerce  and  all  personal  cliattels  most  largely  deix'iids.  It  is  an 
all-pervading  element  of  jiroperty.  Possession  of  a  bill  of  lading,  or 
even  an  oral  contract  for  freighting  carries  with  it  tin'  iiossession  of  a 
ship's  cargo  of  fur  seal  skins  (hat  the  owner  has  never  seen,  and  attends 


64 


in- 


*i- 


tlicmaroiiiKl  tlic  <';nni.«»iil;iii(lini»l  sc:!.  All  he  is  required  totlo  toniako 
bis  possossioii  coiiiidote  is  to  idt'iitify  liis  property  in  any  way  be  can. 
And,  so,  if  the  United  States  own  the  fnr-soals  before  tiiey  cross  the.'J-niilo 
limit,  and  bave  a  eoiistmctivo  le^al  iiossession  of  tiieni  up  to  that  line, 
and  if  the  seals  are,  for  instance,  nursing  mothers  going  aft(?r  food  to 
nurture  their  pups  on  shore,  with  a  fixiul  pur[»ose  of  returning  to  it, 
the  (HMistruirtivo  possession  of  the  animals  is  secured  to  the  United 
States  after  they  cross  the  3 mile  limit.  Without  this  there  could 
be  no  security  for  property  in  animals  when  they  are  not  on  the  own- 
er's land,  even  when  they  arc  within  bis  view  and  be  is  guarding  them 
in  the  best  way  he  can. 

If  the  seals  are  wild  animals  belonging  to  the  United  States  by  the 
declaration  of  positive  law,  or  rutionv  soU,  or  mtione  inipoti'iitia,  or  by 
acitual  capture,  and  if  this  property  is  iu)t  lost  when  the  animal  goes 
into  the  ocean  for  food  ov  pleasure,  with  the  intent  to  return,  or  untler 
an  instinct  that  dominates  its  movements  and  leaves  it  without  an 
option  as  to  returning,  one  .who  capture^- it  when  thusatlarge  deprives 
the  United  States  of  their  proptaty.  If  the  captor  is  a  citi/en  of  the 
United  States  he  is  guilty  of  the  diuible  wrong  of  breaking  the  pre- 
serve of  the  United  States,  which  is  closed  as  to  liim,  and  of  taking  its 
property.  That  is  i>oaching.  If  the  captor  is  a  liritisb  subject  ho 
commits  a  trespass  on  the  property  of  the  United  States,  because  ho 
found  it  at  a  place  in  the  open  sea  to  which  it  went  lawfully  and 
where  it  was  constructively  in  the  lawl'ul  possession  of  tbo  United 
States. 

The  ease  nn'ght  bo  different,  would  be  different  under  tbo  Knglish 
connnon  law,  if  the  seal,  being  a  wild  aniniul,  should  enter  within 
IJritish  territorial  limits  and  there  be  slain  or  captured.  In  that  ease 
the  possession  would  change  so  as  to  give  the  right  of  property,  rutione 
soli  to  that  Government,  and  that  right,  or  that  lawful  power  over  the 
animal  would  continue  while  it  remained  on  British  territory.  But  this 
is  the  t»nly  instance  in  which  the  United  States  would  lose  its  right  of 
property  in  the  Alaskan  fur-seal,  born  on  its  soil,  while  the  animus 
rfnitvndi  continued  to  control  its  movements  in  its  visits  to  tbo  ocean. 

The  indetinite  right  of  i)rivate  fishing  in  the  open  sea,  in  favor  of  an 
individual,  is  too  sliglit  and  ill-founded  to  overcome  the  right  of  prop- 
erty in  a  nation  that  is  trying  to  prevent  the  pelagic  hunter  from 
destroying  a  great  prodiuition  of  commeri-ial  value,  a  source  of  revenue, 
aud  an  iustruuientality  of  government.    Not  that  the  property  vij^bts 


i 


65 


do  to  niiiko 
'iiy  bo  can. 
istho.'Jinilo 
D  that  lino, 
'tcr  food  to 
riiiiiy;  to  it, 
tlio  United 
Iku'o  could 
III  tlie  owii- 
rdiiig'  tlieiii 

tcs  by  tlio 
[•utia,  or  by 
iiiiiiial  goes 
11,  oi'  under 
without  an 
;(c  deiuivcs 
tizen  ot'tlio 
ng"  the  i»rc- 
I  tiiking'  its 
subject  ho 
because  ho 
fully  and 
10  United 

10  Knjjlish 
er  with  in 

tliat  ease 

y,  rati  one 
r  over  the 
But  this 

s  right  of 
10  animus 
the  ocean, 
ivor  of  an 
b  of  prop- 
nter  from 
f  revenue, 

•ty  vijjhts 


or  lawful  privih'ges  of  any  man  iire  less  sacred  than  those  of  a  State, 
but  government  implies  the  subonliiuitiun  of  jnivale  eights,  in  a  neces- 
sary degree,  to  the  general  welfare,  and  this  is  th(<  lirst  view  of  all 
rights  taken  by  iiiteniatioiial  law.  It  is  on  this  princij^lo  that  these 
two  Governments  have,  ill  this  treaty,  substituted  their  international 
rights  ami  powers  as  sovereigns  over  their  people,  and  iill  their  rights 
respecting  fur  seals,  and  over  the  seals  and  tito  rookeries,  islands, 
waters,  and  their  Iesse<>s,  and  compel  them  all  to  yield  to  a  rule  of  inter- 
national law,  that  the  soveicign  nations  alone  v,m  deal  with  the  inter- 
national rights  of  their  pe(>])le.  Jf  they  should  extend  theexistiug  hkhIuh 
Vivendi  i)erpi>tualiy,  no  citizen  of  either  country  coulil  be  heard  to  make 
complaint  that  his  private  rights  had  been  thus  destroyed,  or  that  they 
were  protected  by  any  law  that  could  save  tiieni  from  the  power  of  their 
own  government. 

If  all  the  facts  presented  in  this  case  establish  that  seals  are  property 
to  bo  classed  as  domestic  or  domesticated  animals,  the  claim  of  the 
right  to  hunt  and  destroy  them  anywhere  against  the  consent  of  the 
owner  is  without  f<miidation.  If  cattle  on  the  boundary  line  of 
Canada,  where  they  are  grazed  in  vast  herds,  and  are  almost  as  wild 
as  butlah),  should  wander  across  the  border  of  the  United  States,  that 
(lovernment  could  not  seize  them  without  a  viohition  of  inteinatioiuil 
!aw.  The  case  would  be  stronger  under  that  law  if  the  cattle  were 
owned  by  tlie  (lovernment  of  (Uiinida,  ordreat  Britain.  The  right  of 
property,  Jv/^/oHf  «f)//,  would  not  accrue  to  the  Unite<l  States,  for  the 
reason  that  they  are  domestic  animals  in  their  universal  dassilication, 
and  that  fact  is  notice  to  the  world  that  they  arc  the  property  of  some- 
body, and  are  not  res  nulliuf!. 

Whether  fur  seals  are  fishes,  or  domestic  animals,  or  wild  animals,  is 
to  be  determined,  first,  by  the  (luestion  whether  the  most  esx'iitial  facts 
of  their  existence  occur  during  the  ]ieriod  of  their  lives,  on  thehind.  It 
is  possible  to  nurture  them  on  hind,  by  using  jiKtiicr  n]i]»liaiices  and 
food,  and  they  can  thus  be  made  to  increase  in  ii'imbers,  but  that  pos- 
sibility only  proves  that  they  are  not  fishes.  This  is  demonstrated  in 
I'aris  and  London,  and  elsewhere.  l)y  daily  experience.  It  is  not  pos- 
silde  that  a  seal  can  be  born  and  reared  in  the  sea.  It  is,  therefore,  to 
be  classed  as  a  land  animal,  as  its  creation  and  birth  can  only  occur 
on  land,  and  these  facts  are  essential  to  the  existence  of  this  animal. 

A  singular  faculty  of  the  male  seals,  at  least,  of  living  for  •  (onths 
on  land  without  taking  i'ot'd,showstliat  they  may  be  kept  out  of  the  sea 
1145)5  M- 


-5 


CG 


M 


mn 


r«)r  ouc-tliini,  nt  li-ast,  of  tlicir  lives,  witliotit  injury  to  tlioin.  If  dur- 
ing lliiit  jtri  (nl  tlit'.v  Nvcit'  siilliciriitly  ft'tl,  tlu'ic  sfeiiis  (o  be  no  ruiiHOli 
to  su|t|M».st'  tliiif  ii  \isit  to  tlio  sea  could  not  beentir<'ly  <lispense(l  with. 
Iiulecd,  tliis  is  (lone  in  nienii^^eiies  tliiit  tnivel  inliind,  uiieie  tur  seals  are 
kept  for  years  in  j;(»(mI  condition  witlnnit  on<'e  entering;  the  sea.  AVIiile 
the  sea  is  the  place  where  their  food  is  sought  and  found,  it  is  no  more 
the  exclusive  Iniunt  for  such  ]iurposcs  than  the  uild  mountains  and 
plains  in  America  are  for  ihe  nurture  of  cattle,  and  sheep,  or  swine, 
or  till  Keys,  or  than  the  o])en  waters  of  tlie  sea  are  lor  the  nurture  of 
ducks  and  ^'cese  that  are  classed  as  doinestit;  animals.  It  eau  not 
be  the  food  or  feeding  grounds  that  distiiiguisli  between  animals  a» 
land  or  sua  animals,  ov  as  bein^'  wild  or  tame. 

In  Ihe  case  ol  all  these  animals  the  essential  and  controlling  fact  as 
to  their  classilication  as  land  animals  or  as  tishes  is  that  they  can  only 
have  birth  on  the  land,  and  are  not  lishes  either  in  form,  structure, 
instincts,  habits,  or  the  necessities  of  existence.  They  can  not  breathe 
beiieatii  the  water. 

If  th(y  iHe  essentially  land  animals  the  question  of  their  domesticity 
is  a  vei  y  simple  one.  That  fact  depends  upon  their  usefulness  to  man, 
their  inability  to  es«;ape  frons  his  control,  and  the  certainty  and  regu- 
larity of  the  forces  that  ojterate  to  subject  them  to  his  absolute  dis- 
])osal.  In  these  respects  the  seal  has  an  adaptation  and  fitness  for 
<loineslic  nse  that  is  not  so  obvious  and  so  certain  and  easy  of  control 
in  any  othei' animals.  Domesticaiion  of  other  animals  that  are  allowed 
freedom  to  come  or  go  at  jdeasure  depends,  in  a  larye  measure,  on  their 
consent.  In  the  ease  of  the  fur-seal,  the  nature  of  the  animal  and  the 
condilions  of  its  existence  thronjih  a  series  of  years,  ami  also  of  its 
inciease,  comjiel  it  ])eri()dically  and  with  certainty  to  submit  itself  t<.^ 
the  power  of  those  who  own  and  occupy  two  small  islandsin  IJeriny;  Sea. 
A  similar  ciiinate,  similar  shoies  and  coasts,  and  the  same  food  have 
for  many  ayes  invited  them  to  select  other  homes  on  the  islands  and 
shores  of  the  same  sea.  Tiiey  have  never  done  .so,  and  there  is  no 
j-round  for  the  conjecture  that  they  ever  will.  The  Pribilof  Islands  bear 
the  marks  of  a  Ion jij- continued  residence  of  the  .seals  in  vast  numbers 
upon  their  shores,  'fhe  rough  rocks  are  worn  smooth  from  their  haul- 
ing Over  them.  "NVhat  are  called  the  i>arade  grounds  of  the  hoUus- 
chickie  are  described  as  being  large  areas  of  sandy  soil  worn  and  com- 
pacted to  the  smi>othness  of  a  floor.  The  carpet  of  fur  and  hair  felted 
together  in  the  intcrsliccs  of  the  rocks  and  in  the  sand  could  only  have 


i 


67 


Mil.  It'dur. 
lu  no  ruiiHon 
H'iis<'(l  witb. 
Inr  sralw  are 
sea.  \Vliil« 
t  is  no  inoi'u 
untainK  and 
'p,  or  Kwine, 
5  nuitiire  of 
It  ran  not 
I  animals  a» 

tllinfj  fact  as 
lioy  «an  only 
in,  wtrntture, 
1  not  breathe 

•  donu'stieity 
InesK  to  man, 
ty  and  regu 
ibsolute  dis- 
d  litness  for 
■;y  of  control 
t  are  allowed 
n\i\  on  their 
Mial  and  the 
1  also  of  its 
iiiit  itself  tv 
1  IJcriny  tSea. 
le  food  have 
islands  and 
there  is  no 
Islands  bear 
ast  numbers 
n  their  haul- 
f  the  hollus- 
rn  and  com- 
[l  hair  felted 
Id  only  have 


been  prodnccd  by  many  years  of  shedding  seasons  in  which  it  was 
deposited.  In  all  the  citise  cxiiminations  that  have  been  nnide  by 
many  observers  and  experts  sent  to  the  coasts  and  islands  of  llering 
Kea  and  to  the  south  and  east  of  it,  aloii^'  tlie  shores  and  islands  of 
the  Aleutian  chain  an<l  the  coast  of  the  North  American  continent, 
not  a  si;;:n  or  trace  of  any  rooUcry  or  hauling  ground  has  been  found 
except  upon  th<'  tw«>  islands  of  St.  (leoige  and  St.  Paid.  Neither  the 
evidcui'e  nor  any  rational  deduction  from  it  «*onveys  the  least  cctnjec- 
ture  that  they  ever  had  any  other  lionu*. 

No  two  <listinct  (lasses  of  animals  have  been  or  can  be  domestic'ated 
by  the  sanu'  nu'ans.  Sonic  have  tlicsocinl  in^tinct  strongly  devehiped, 
as  dogs,  horses,  <'attle,  and  sheep.  Othcis  are  simply  obedient  to 
superior  power  and  skill,  as  the  elephant,  ast',  butf.ilo,  Ihuna,  and 
reindeer.  Otheis  are  doincstu  ..*'"'  throngh  tlicir  forced  lor  food  and 
need  of  protection,  as  swine  and  poultry.  Others  do  not  look  t(»  nnin 
for  any  of  these  UH-ans  of  control  or  for  food,  as  the  fur  seals.  Yet,  in 
this  lowest  condition  of  the  i)ower  of  enforcing  or  indu<'ing  (hunestii-a- 
tion  by  the  art  of  nuin,  the  result  of  <loniestication — the  dominion  of 
man  over  tlicm — is  the  nH)st  certain  and  the  easiest  of  enforcement. 
Filling  the  most  exact  reciuiremcnls  of  domestication,  ax  to  their  sub- 
jection to  the  will  of  man,  no  reason  exists  why  they  should  m)t  be 
chissed  as  domestii- animals.  In  the  legislation  of  the  United  States, 
IJussia,  Japan,  CliiK ,  and  the  Uritish  eohtuies,  where  fur  seals  go 
ashore  to  breed  and  to  shed  tlu'ir  coats  of  liaiiand  fur,  the  utmost  pos- 
sible protection  is  given  tlu-m  that  can  be  eticc  ted  by  municipal  law. 

These  acts  of  protection  assume  the  liglitt'iil  and  full  control  of  the 
aninuils,  within  these  respective  jurisdictions,  disregarding  all  claims 
of  citizens  or  subjects  to  rights  of  projierty  in  the  animals,  or  rights 
of  chase  fiu-  the  purpose  of  coiivi-rting  tluni  into  property.  These 
acts  go  further  and  forbid  hunting  on  land  an«l  sea  during  certain 
seasons,  aiul  in  certain  areas  of  the  ocean,  and  the  seals  are  ai)pro- 
])riated  by  tlM'se  (lovernments  for  revenue  jjurjioses  through  leases 
ami  licenses,  for  whicli  a  tax  is  paid.  And  even  these  privileges  are 
coniincd  only  to  the  citizens  of  the  lespective  countries  and  colonies. 

In  the  IJritish  system  of  fur-seal  protection,  the  only  country 
omitted  Irom  the  list  of  colonies  where  seals  are  found  is  Canada. 
It  has  DO  coasts  or  islands  on  which  fur-seals  habitually  land,  and 
has,  therefore,  no  interest  in  any  rookery  that  recpiircs  protection. 
Canada  lays  broadside  on  the  rucilic  Ocean,  near  to  the  highway  of 


68 

the  fur  Hcals  ill  tlicir  aiitiiiiil  iiii;;riiti(itis  in  si-arcli  of  food,  and  UiitiROH 
tliciii  to  bit  wayiiiiil  xnIicii  tJK'y  ari' hcariii;;  IIm'  riitiiio  ]M-(Ml(i<'t,(iiMv)ii(-li 
tho  pn'st'ivatioii  of  liu-  s)uM'ics  ilepciids,  to  tliat  pla<"»' wlicro,  for  all 
time,  so  far  as  wt;  know,  tliry  lniv«'  pmo  to  lM'j;«'t.<l('iivt'r,  ami  imitiini 
tlicir  offspriii;;.  It  lias  also  a  location  near  to  tlic^  narrow  passes 
tliroii/j^li  wliicli  tliesc  seals  iiiiist  |iass  on  tlicir , journey  to  anil  from  the 
i'l'ihilof  Isliinds.  Then',  they  are  waylaid  ami  captiireil  without  dis 
crimination  as  to  a;;e  or  sex  and  while  they  are  at  the  absolute,  mercy 
of  the  hunters.  They  can  easily  c<incentrate  there,  in  the  open  ocean, 
with  vessels  enoujxh  to  exterminate  the  siiecies  by  an  ambuscade  that 
the  seals  can  not  iM)ssibly  avoid. 

If  Canada  shares  tln^  /cal  for  the  preservation  of  the  fur  seal  si)ecieM 
profi^ssed  by  (Ireat  Britain  in  her  correspondence  with  h'lis  .ia  and  the 
United  States,  and  should  «'xliibit  jiractically  her  eom-urrence  in  the 
Ic^iislation  of  all  the  other  llritish  ccdonies  that  are  «lircctly  intercste<l 
ill  fur  seals,  she  would  llndaiii|>le  opporl  unity  to  le;;islate  for  their  protec- 
tion. The  earliest  |>ractice  of  pclajiic  scalinj;  in  the  waters  of  the  North 
racilic  of  which  anythin.ii'  is  deiiiiitcly  known,  wasi'onductcd  by  Indians 
in  the  Straits  of  San  .Iiian  de  Fuca,  one  half  of  wliic'i  ocean  liigiiway 
bclonjrs  to  Canada  under  a  tn^aty  with  the  United  States.  IVhifiic, 
hiintin};^  is  still  conducted  in  these  straits;  and  it  is  from  those  waters 
that  nearly  every  sealiii.ir  vessel  is  fitted  out.  It  is  thei-e  that  the  protec- 
tion of  tlu'  llritish  lla^^  is  avoided  to  citizens  of  the  United  States  to 
shelter  them  in  violating:  the  laws  and  public!  jiolicy  of  their  own  I'oun- 
try.  It  is  in  those  waters  that  the  i)cla]Lcic,  catch  of  seal  skins  are  assem- 
bled and  sent  to  market.  The  huntinjj^  of  fur-seals  on  the  ocean  at  tln^ 
passes  into  Hcrin^  Sea,  and  in  that  sea  and  in  Uiissiaii  and  Japanese 
waters,  is  a  {jreat  leadinj,'  industry  of  the  inhabitants  of  Vancouver 
Island.  If  the  Tacilic  ports  of  the  Mritish  possessions  in  America  were 
closed  to  su(di  trafllc  the  si^al  herds  would  scarcely  need  other  jirotection. 

With  all  these  opportunities,  Canada  takes  no  part  in  any  lej;islation 
for  protectin;,^  fur-seals  in  the  Pacific  Ocean  and  is  wholly  out  of  sym- 
pathy with  the  professions  of'CJreat  Britain  of  favor  for  these  just  and 
liij^li  purjxises.  Canada  seems  to  have  no  resjjcct  for  the  opinion 
expressed  in  the  lejjislation  of  other  countries,  and  especially  by  all 
British  provinces  interested  in  the  preservation  of  fur-seals;  but,  to 
maintain  its  hold  on  the  seal  herds,  it  urges  Great  Uritain  to  insist  that 
her  i)eople  have  the  right,  under  the  pretext  of  lisliing,  to  appropriate 
to  themselves  any  fur  seals  found  in  the  sea. 


69 


I  CilUROfl 

II  wliicli 
•,  for  all 

,•    pil. SSI'S 

iVoiii  \\ui 
tout  «lis 
t<i  iiH'H'y 

'II  (U'Cilll, 

;ade  tliiit 

il  spt'cicH 
I  and  tli(^ 
•0,  ill  tlu'i 

llti'H'StlMl 

■ir  prtttt;*',- 
lio  Noitli 
y  Indians 
liigliway 
lN'lii}ii«'- 
e  waters 
u'  |H(>t«'(r- 
Stat«'s  to 
)wu  ccmn- 
vi-  assoni- 
an  at  tll(^ 
Japanese 
ancouver 
iiea  were 
Irotection. 
>j>islatiou 
t  of  sym- 
jiist  and 
|»   opinion 
lly  by  all 
;  but,  to 
isist  that 
propriato 


Great  llritain,  for  political  reasons,  ajtplies  the  doctrines  of  protec- 
tion of  fnr-seals  to  all  her  other  colonies,  and  tpiotes  tVotn  th«^  interna- 
tional law  the  establisJM'd  ri;ilit  of  "free  lishinn"  in  Jnslitication  of 
Canada  for  a  practice  tliat  will  result  in  the  wholesale  destrnctiun  of 
the  species.  While  sinli  contentions  are  insistctl  upon  by  this  jjreat 
power,  it  wonld  I)e  only  injnrioiisto  the  honest  portion  of  the  people  ()f 
the  United  States  for  ('on;jress  to  enact  laws  to  punish  pelaf^ic  iiuntinj; 
on  the  I'ac.ilie  Ocean.  Siicli  laws  would  oidy  cause  a  repetition  of  the 
practie«5  on  the  ocean  tliatwas  rife  in  HerinH;  Sea  belorti  the  moilun 
rirenili  iii  IS!H  was  (established — that  is  to  say,  it  would  invite  dishon«'st 
ami  unjKitiiotic  citizens  of  the  I'nited  Stales  to  seek  the  shelti'r  of  the 
Hritish  tlaj;,  while  in  its  name  and  under  its  power  they  would  defraud 
ami  dislionor  their  own  country.  It  was  not  until  lierinj;  Sea  was 
closed,  partially,  to  p('la;;ic  liuntin},'of  fur-seals  in  ISIM  ami  lStH»  that  this 
new  source  of  dan;;'er  to  the  seal  herd  was  undeistood  or  apprcM-iated. 
The  results  of  closin;;  l>erin;(  Sea  to  pcla;|ic-  sealin;^  caused  sealers 
from  Canada  and  the  United  States  to  concentrate  their  {jreatly 
increased  forces  in  huntinfj  the  herd  on  tln^  L'aeific  ami  in  intercepting; 
tliem  in  the.  Aleutian  passes.  This  was  not  known  until  after  the 
treaty  of  Tebruary  L'!»,  IS'.L'.  This  is  a  new  and  dan;;(;rous  condition 
which  the  treaty  expressly  included  in  the  purview  of  the  powers  of  the 
Tribunal  of  Arbitr.ilioii.  It  was  in  the  last  days  of  tin",  negotiation  that 
this  important  phase  of  the  case  was  brou.Ljht  to  notice  ami  provided 
for. 

The  (piestion  as  to  the  Justilication  of  this  ])lan  of  "fisliinjj,"  if  it  is 
lishing,  is  as  new  in  international  law  as  the  occasion  that  pfave  rise  to 
it.  If  it  is  "lishin^',"' the  method  of  it  is  new,  and  was  wholly  unknown 
when  the  rij^ht  <tf  lisliinj;  anywhere  in  the  ojjcu  sea  was  recognized  in 
th(^  law  of  nations.  If  the  light  ntnv  claimed  to  bo  lawful  under  this 
new  method  is  a  total  departure  from  fishing,  as  it  was  practiced  when 
the  right  to  fish  was  estalilished,  and  is  fatally  destrm-tive  of  the  spe- 
cies of  "fish"  against  which  it  is  emjiloyed,  there  is  no  warrant  for 
saying  that  it  is  sanctioned  by  international  law. 

The  abuses  to  which  this  pra<;ticc  must  lead,  as  already  develope<l  in 
two  years  of  experience,  show  that  the  claim  set  up  by  Camnla  of  a 
right  to  "fish"  for  fur-seal  with  fleets  of  vessels  and  boats,  armed  with 
shotguns  ami  prepared  cartridges,  and  to  kill  them  indiscriminately, 
has  but  one  elenuMit  of  the  established  right  of  free  fishing,  luimely, 
that  it  is  conducted  on  the  high  sens.    Fishing  with  sliotguiis    n  tlie 


1^" 


70 


1j]  1 

HI 


ocoitii  IS  new.  It  is  nn  innovation  llmt  ilcstmya  tlio  Hnhjcct  to  wliicli 
it  applies.  It' this  is  ii  ri;:lit  wliicli  tlir  intiMiiiitiiMiiU  law  must  rt'co;; 
iii/«>>,  iiUliniigli  it  is  ainxtst  nnivcissilly  ilcnounccd  hy  niuniripal  law,  it 
iiiiist  be  limited  to  a  r<>asoniil>le  use,  as  all  pi-ivile;i;es  ai<>  limited.  As 
it  is  praetired  by  pe]a;;i(t  sealers  at  tliis  day  it  reeelvi^s  tlie  condemna- 
tion of  international  law,  because  it  sa<  rilices  and  destroys  tlio  benefits 
of  ilie  seal  lieiils  to  tlH>  commerce  <>t'  the  world  and  imposes  on  the 
Unitt'd  Stales  very  s<'iions  burdens  in  prcservin};'  the  seals  lor  thu 
private  atlvanta^je  of  persons  en;,'iiued  in  an  or;.;iinize(I  hunt,  wliilo 
denying;  the  ri;;'lit  of  her  own  eiti/ens  to  take  them. 

The  United  Stat«'s  n)ust  protec^t  the  seals  ii;;iiinst  her  own  jieople  or 
else  they  will  be  speedily  destroyed.  If  in  dolii;;-  this  all  her  care  and 
ex|)euse  are  turned  to  iian.'L'lii  by  a  rule  of  international  law,  site  can 
only  aliandon  the  seals  to  their  fate,  let  the  islands  be<'om<'  barren 
of  all  value,  and  console  herself  with  the  rctU'ction  that  her  saerilico 
adds  a  ])ower  to  the  international  law  that  is  more  authoritative  than 
the  jndjjnu'ut  of  all  the  nations  of  the  earth,  except  Caiiada. 

It  is  a  new  and  very  <laii};crous  jiliase  of  the  rifjhtsof  lisheruMMi  that 
they  cau  lawfully  combiiu'  to  destroy  lisli  and  use  tlie  agencies  that 
are  necessarily  destructive  of  a  ;L;iven  species  of  fish  under  the  i)ro- 
tection  of  international  law.  It  is  still  moie  dan^cKuis  if  tliey  can 
lawfully  waylay  the  lish  at  uariow  jtassa  "s  between  islands  and 
destroy  them  as  they  apitroach  the  shores  and  bays  of  a  neijiliboriii}'- 
nation,  and  yet  more  danjjeious  if  they  can  lawfully  forirj  a  cordo]»  of 
vessels,  with  j^reat  nnndx'rs  (»f  men  armed  with  sliotj^uns,  Jnst  outside 
the  3-niile  limit,  and  can  kill  seals  that  are  fice  bieathing:  as  well  as 
free-swinmii:i{>' animals,  whenever  they  rise  to  the  surface  for  air  and  <'oine 
in  range  of  their  };iins,  while  they  are  pass!  n};  to  and  fro  in  search  of  sus- 
tenance for  themselves  and  their  otlspring.  Yet  all  these  (tombinations 
and  practices  are  lawful,  if  the  right  of  pelagic  hunting  of  lur-seals  is 
the  same — no  more  and  no  less — with  the  right  of  tishing  in  the  high 
seas. 

It  is  not  surprising,  in  view  of  such  serious  results  as  would  follow 
the  practice  of  pelagic  sealing,  and  have  already  lesulted  from  it, 
where  it  is  placed  on  the  same  looting  Avith  the  right  of  fishing  in  the 
open  sea,  that  thfi  power  to  ordain  (toncnrrent  regulations  for  its  con- 
trol, or  prohibition,  was  given  to  a  Tril)unal  of  Arbitration. 

It  is  oidy  by  regulation^,,  and  not  by  advice,  or  by  the  statement  of 
the  principles  of  law  that  govern  the  ease,  that  these  matters  (;an  bt. 
settled. 


n 


to  wliicli 
ist  n'co;; 
till  liiw,  it 
i(<'(l.     As 

IMHicilllia- 

R  iH'iiclits 
OS  on  tlio 
Is  for  tlio 
lilt,  wliilo 

poo]>1o  or 
'  ciirct  iiiid 

',  slit'    Cilll 

ir  l):inoii 
r  siicrillco 
itivo  Miiiu 

I'liion  tliat 
iH'ies  tliat 
•  tlie  1)10- 
llioy  cnn 
iiiids  and 

ordoii  of 
t  outside 
s  woll  as 
and  ('OHIO 
ell  of  sns- 
)iiiatinns 
r-scals  is 
the  Iiigli 

Id  follow 
from  it, 
iijl  ill  tlie 
>r  its  con- 

"tonioiit  of 
•s  can  bfc 


71 

Tlie  iMMH'IiisioiiH  I  have  reaclM'd  arc: 

1.  That  tlie  Hiiited  Stat<>Hhave  a  |it-o|int,v  in  the  seals  in  and  haliit- 
ntilly  i-esortiiif;  t«)  tlieir  islands  in  lii'iitiji;:  ^<'a. 

2.  That  this  iiroperty  in  in  the  lawful  |Missession  and  eoiitrol  oi  the 
United  States  when  it  is  found  on  their  islands,  or  within  the  limits  of 
their  tei-ritorial  Jnrisilictioii,  and  they  have  the  exclusive  jiirisdiclioii 
to  protect  and  preserve  them  within  those  liiiiils. 

3.  That  this  property  is  also  in  the  lawful  possession  of  tlu^  irnited 
•States  when  the  seals  are  I'oniid  in  the  open  ocean  anil,  in  such  waters, 
tlii'y  have  such  riylils  uf Jurisdiction  over  these  fur  seals  as  anyowiier 
of  land  uniiiials  would  liavi;  over  domestiir  or  domesticated  animals, 
when  found  on  thepulilic  lii;>hways. 

4.  That,  as  a  sovcreijjn  power,  the  lliiileil  Slates  iinty  punish  its 
eiti/ens  for  appropriatin;;  or  destioyiii};  its  propeif;>  'ii  llh'  lii^h  sc  isj 
but  they  can  exerci.se  m>  hi}j[her  powers  over  propeiiy  so  situated,  wiien 
it  is  heinj;  ji]>)V(>|>riated  or  destroyed  l>y  thecili/ens  of  other  countries, 
than  a  private  owner  could  exert  under  like  ci  renin 'stances. 


H: 


w 


\  • . 


'TI 


it     I 


IN  THE  DirUMTSSlON  OF  TUK  OT-NF.KAL  RI'lMEf!T  OF  TTTE  AWARD  TO  BE 
KKNDEKEI)  ItV  TIIK  TKIUUNAL,  A«  TV)  WII101[  LOKD  IIANNEN  SUB- 
JUTTED  A  FORM  OF  AWAllI),  SENATOll  MOIJUAN  WUJJMITTED  THE 
FOLLOWING  IJEMAllKS : 

I  snj)post'(l  that  tlic  dohato  on  tlio  qnosfions  arising  undor  the 
tirat.v  liad  been  closed,  and  tluit  tlie  niondxTS  of  the  tribunal  would 
now  deliver  (heir  opinions,  seriatim,  in  the.  order  agreed  upon.  But  Lord 
llannen  has  made  some  criticisms  on  the  attitude  of  the  United  States 
and  the  ariiiinientvS  of  its  counsel,  that  seem  to  open  up  the  discussion 
of  the  wholes  subject,  and  1  must  not  allow  them  to  pass  without  notice. 

As  1  have  had  occasion  several  times  to  remark,  during  the  ])rogress 
(tf  the  discussion  before  the  tribunal,  this  is  iu)t  a  litigation  between 
the  I'nited  States  and  (Ireat  IJritain  in  which  a  judgment  can  be  ren- 
dered by  this  tribunal  in  favor  of  one  party  and  against  the  other  for 
a  right  asserted,  or  for  property  or  damages  which  one  party  must 
gain  and  the  other  must  lose. 

The  treaty,  which  is  a  law  to  the  tribunal,  provides  that  each  party, 
at  a  certain  time,  shall  <leliver  its  ]>rinted  case  to  the  jirbitrators,  and 
to  the  agent  of  the  otiier  party,  in  which  its  claims  shall  be  fully  stated. 
Thus  two  independent  cases  are  icquired  to  b(^  stated  and  submitted 
for  decisiim.  This  was  done,  and  when  it  was  done,  the  attitude  of  the 
two  (lovernments,  as  to  the  claims  they  respectively  submitted,  was 
fixed  and  deternn'ned.  This  re(piire  iient  was  not  observed  by  Great 
Britain,  but  other  evidence  not  presented  and  submitted  either  in  its 
case  or  counter  case,  was  otfered  during  the  ])rogress  of  the  oral  argu- 
ment and  was  nHeive<l  and  considered  by  the  tribunal. 

I  insist  that  these  ])roeeedings  do  not  comprise  one  ease,  but  sepa- 
rate cases.  They  are  to  be  heard  togethei',  but  they  are  not  cross 
actions,  neither  are  t'.iey  <();isolitl;ited  actions,  as   is  sometimes  the 


rARD  TO  "nK 
ilSNEN  SUB- 
ITTED  TIIIO 

■  utidor  the 

uiial  would 

1.   But  Lord 

litod  States 

3  discussion 

liout  notifo. 

lie  ])roj!;ress 

1)11  between 

!an  be  ren- 

le  other  for 

)arty  must 

eaeli  party, 
ators,  and 

ully  stated. 

submitted 

tude  of  the 

initted,  was 

d  by  Great 
ither  in  its 

e  oral  argu- 

»,  but  sepa- 
}  not  eross 
letimes  the 


73 

case,  under  the  orders  of  a  court  liaving  plenary  i)owers.  This  tribu- 
nal has  no  such  powers,  but  must  decide  each  <-ase,  as  it  is  stated 
and  submitted,  upon  its  merits. 

The  simplest  analysis  of  tlie  cases,  to  which  all  other  (|ues( ions  aro 
njcrely  incidental,  is  this:  that  (Ircat  Mritain  «;laiiiis  lor  its  .subjects  the 
unlimited,  unrestricted,  and  untiualilied  ri;;ht  of  hnntin<>'  and  killiii<; 
fur  seals  of  all  ayes,  sexes,  and  conditions  at  any  ])lace  in  I»erin<;-  Scji 
and  in  the  North  Pacillc  Ocean,  that  is  ontsidc  (he  ordinary  territoiial 
limit  of  3  miles  from  tlu^  islands  and  coasts  of  the  United  States.  'J'hat 
is  the  entire  claim  of  Great  IJritain,  as  it  is  subniitteil  to  this  tribunal 
in  the  British  case. 

The  United  States  clainj  the  ownership  of  the  fur-seals  that  are  in, 
or  that  habitually  lesort  to  Berinj*'  Sea,  and  tlu^  rij^ht  to  jyrotect 
them  wherever  they  are  found,  outside  the  tcriitoiial  limits  of  (jreat 
]5ritain.  The  tribunal  shouhl,  in  my  opinion,  have  taken  uj)  thesecases 
separately  and  have  decided  them,  .uivin^'  due  consideration  to  tin'  ob- 
jec^tions  raised  in  the  counter  case  (»f  either  ]>arty  to  the  case  of  the  oilier 
])arty.  The  decision  of  the  riyiits  claimed  in  cither  case,  does  not,  nec- 
essarily, disi)ose  of  the  ri{?hts  that  are  claimed  in  the  case  of  the  other 
jiarty.  A  dcirision  ihat  the  United  States  has  the  ownership  of  the  seals 
or  the  herd  of  seals  does  not  allhiii  its  jiowcr  toextend  its  statutes  into 
the  Pacifu!  Ocean  and  enforce  them  there  against thesubjectsof Great 
Britain  in  any  and  every  case  of  tresjiass  ujjon  tliat  property  that  may 
occur,  or  may  have  occurred,  even  recently  and  upon  hot  pursuit  of  the 
ofiender. 

Neither  W(Mild  a  decision  to  the  contrary  enlille  the  subjects  of  Great 
Britain, or  of  the  United  States,  to  hunt  fnr  seals.up  totlie  bor<lersof  tlie 
I'ribilof  Islands,  in  such  force,  and  by  such  methods  as  w<»mI(1  seri- 
ously endanger,  disturb,  or  threaten  the  industry  and  the  revenue 
system  that  the  United  States  has  estalilislied  there  for  the  |)ur|)ose 
of  niaiiitaiiiing  government  on  the  islands  and  of  enconiaging  the 
natives  there  in  eavning  a  support  and  in  raising  themselves  to  better 
conditions. 

It  is  claimed  here,  as  it  was  (claimed  in  the  arguments  of  counsel  for 
Great  Britain,  that  '..he  ri^ht  of  jteiagic  sealing  exists,  as  to  fur  seals, 
under  the  international  law,  in  favjor  of  the  subjects  of  Great  llritain, 
and  also  in  favorof  the  citizens  of  the  UnitedSlates,  without  any  restric- 
tiojis  whatever.  That  noconditions  of  time,  or  manner  <.f  hunting  the 
seals,  or  us  to  the  age,  sex,  or  otiiei' condition  of  the  animals,  or  as  to  the 


74 


ii 


O'r 


i 


H 


nnmbors  ciiftivscd  in  liuiitiiifj  tlicm,  or  tliiit  tlioir  i»nr]>oso  is  to  destroy 
Miem,  or  tliiit  tlicirimplcniciits  of  wiiirnrt' are  most  dt'auly,  ciin  operate 
to  control  the  pelajiit;  sealei-  outside  the  limits  of  territorial    waters. 

This  view  of  their  li.^lits  is  not  (lisjioscd  of  by  deciding,'  that  the  United 
States  either  has  or  has  niJt  the  right  to  i)roteet  the  fni  seals,  but  that 
question  is  i)ertiucnt,  in  considering  whether,  under  this  tn'aty  or  in 
the  international  law,  the  riglit  of  pelagic  hunting  of  fur  seals  exists 
and  whether  it  is  an  unlimited  and  unrestricted  right. 

Lord  IFannen  has  «'xpressed  the  opinion  that  all  animals  found  swim- 
ming in  the  sea,  whether  they  are  birds,  fishes,  oi-  beasts,  if  they  are  iu)t 
within  territorial  waters,  are  the  subjects  of  rightlul  pelagic  hunting. 
Under  such  :i  law  an  animal  that  is  donu'stic,  such  as  a  hunting  or 
ducking  dog,  or  a  flock  of  tanu»  geese,  or  ducks,  or  swans,  would  (brfeit 
the  prote(!tion  of  the  law,  an«l  their  owner  w<udd  lose  hia  ])roi)erty  in 
theuj  in  favor  of  the  better  right  of  the  first  taker,  if  tiiey,  in  search  of 
fofxl  or  i)rej',  should  swim  out  on  the  water,  as  they  olten  <lo,  bey<nid 
the  ordinary  o-niih;  limit,  or  that  such  fowls  would  be  liable  to  the 
free  Nj}()rt  of  the  hunter  if  they  shoidd  fly  through  the  siir  in  their 
excursions  beyond  that  limit. 

In  the  effort  of  TiOid  ilannen  to  apply  to  the  fur  seals  a  rule  of  in-oj)- 
erty  and  the  right  of  protection  that  would  apply  to  wild  diu:ks  and 
geese,  and  to  swallows  whose  nests  are  taken  and  used  for  food  in 
China,  he  neglects  to  give  due  weight  to  the  cardinal  fact  on  which,  in 
one  aspect,  the  case  of  tlie  TTnited  States  is  based.  It  is  the  fiU!t  that 
the  fur  seals  that  are  in,  or  that  habitually  resort  to  Uering  Sea,  are 
«H*  </t'H<'m,  ami  that  no  other  fishes,  birds,  or  animals  that  visit  tho 
ocean  for  food  or  pleasure  have  a  certain  fixed  abode  or  home  on 
land. 

His  lordship  omits  to  give  due  weight  to  the  fact  that  no  other  animal 
visits  its  i)lace  of  abode  with  such  unvarying  certainty,  luid  that,  when 
they  are  assembled  they  live  upon  very  limited  areas  of  land,  and  in 
compact  masses,  only  separated  from  each  other  by  the  distam-e  of  a 
few  feet  and  arianged  upon  adjacent  grounds  in  classes  entirely  dis- 
tinct from  each  other,  whereby  tin',  animals  that  are  lit  for  slaughter 
for  their  ])elts  are  kept  entirely  separate  fnuu  those  engaged  in  the 
duties  of  procreation  and  the  nurture  of  the  young.  So  peculiar  is  this 
trait  that  the  young  pu[>s  collect  in  groups,  called  ]»ods,  ami  separate 
themselves  from  all  other  classes  of  seals,  and  k«'ep  up  the  separation 
until  they  return  to  the  islands  the  next  summer  after  they  are  burn. 


75 


to  destroy 
•an  operate 
waters, 
tlieiriiited 
Is,  but  tliat 
reaty  or  in 
eals  exists 

imiul  swim- 
hey  are  not 
ie  hunting;, 
linntiiij;  or 
onld  Corieit 
|)roi)erty  in 
n  seareli  of 
do,  beyotul 
able  to  tlie 
;vir  in  their 

iilc  of  iiro])- 
(lucks  and 
for  food  in 
n  wliicli,  in 
le  fact  that 
ij;-  Sea,  are 
t  visit  the 
home  on 

er  animal 

that,  when 

nd,  and  in 

stanee  of  a 

ntirely  dis- 

slanfjhter 
{i'ed  in  the 
liar  is  this 
d  separate 
separation 
y  arc  born. 


Natnre  has  not  ;;iveii  to  any  other  class  of  animals,  wild  or  domestic, 
this  clear  indication  of  their  serviceable  qnality  for  (In'  nse  of  man  and 
their  nnavoidable  destiny  to  be(!ome  snbject  to  his  complete  dominiim. 

The  wild  {jeese  and  dncks  and  the  swallows  mentioned  by  Lord 
Hannen  never  lose  the  instinct  of  escape  from  man,  which  the  seals 
have  not  except  when  they  are  in  the  water,  and  even  there  it  can 
s(rarcely  be  called  an  instinetor  habit,  until  it  has  been  created  in  them 
by  the  ill  nsaj-c  of  pela};i(!  hunters. 

When  swallows,  jjeese,  and  dncks  wish  to  escape  fron)  the  presence  of 
man  they  have,  at  all  times,  the  means  of  escape  on  the  wing-,  wliich  is 
their  etfectnal  method  of  avoidinjj  captur(\ 

The  seal  on  land  are  almost  entirely  incapable  of  esca pi ntj- death  at 
the  hands  of  man.  The  brce<linj;'  places  of  the  wild  ducks  and  jjeese 
are  scattered  around  the  whole  earth,  above  certain  latitudes,  and  nniny 
species  breed  in  all  latitudes.  They  are  ;y'.s'  nulliiiH  bccans*'  man  can 
not  lay  citlier  his  destructive  or  prcsiTvinj;  hand  on  them  at  pleasure. 
Wouhl  it  b»^  so  as  to  their  nests  or  ejijis,  which  nmy  be  taken  at  pleas- 
ure, or  their  y<ninff  that  can  not  escape,  and  aic,  rationc .so/i,  the  property 
of  the  owner  of  the  soil  ? 

There  is  iiothiM}*'  in  the  evidence  relatinj;  to  Chinese  swallows  or 
their  nests,  but  if  they  build  tlicii'  nests  <tn  the  rocks  alon^'  the  sea- 
coast,  as  I  am  informed  they  do,  the  nests  belonp,-  to  the  owner  of  the 
soil  as  nuich  as  the  honey  collected  by  bees  and  stored  in  a  tiee  that 
stands  upon  his  land,  lint  it  is  needless  to  seek  for  rules  tliat  will 
govern  the  riyhts  of  the  I'nited  States  in  respect  to  fin-  seals  by  citing 
those  that  may  mditate  a,uainst  tliose  lijihts  whiMi  applied  to  tishes, 
birds,  or  beasts,  that  dill'er  from  them  in  their  essential  and  elenu'ntary 
instincts  and  do  not  invoke  the  duty  of  preservinjj  them  by  laws,  be- 
cause they  can  not  es«'ape  from  nmn  or  ])rotect  themselves. 

1  do  not  intend  to  examine  the  (luestion  of  i)ropeity,  or  the  rij,dit  of 
protecting"  it,  with  reference  to  the  bearin;;  ami  authority  of  eases  de- 
cided in  I'^nj^land  or  the  United  States.  As  lar  as  aiialoj^ies  may  be 
useful  in  reachin,u'  Just  conclusions,  they  are  found  to  support  the  con- 
tention of  the  United  States  upon  the  authoiities  that  have  been  so 
ably  discussed. 

Mr.  .lustice  Harlan's  very  clear  and  cogent  o]>inions  on  this  view  of 
the  case,  in  which  he  «piotes  with  ap))roval  from  the  text  books  upon 
nninicipal  and  internati(»nal  law,  really  leave  nothinj^'  for  me  to  say. 
I  fidly  ct)ncnr  In  what  he  has  said  on  these  toph's.     lUit  I  feel  war- 


76 

ranted  uiid  required  to  add  sonic  otlior  views,  arisinjj  upon  the  wliolo 
treaty,  as  to  the  matters  now  under  special  examination. 

This  being  now  a  contr(tversy  between  Governments,  the  ques- 
tions submitted  are  to  be  detided  accordinjjj  to  the  duty  of  the  hi{^h 
contracting  ])arties  toward  each  otlier,  botli  having  the  purpose  of 
l)rotectiug  and  preserving  the  fur  seals.  This  duty  arises  out  of  the 
treaty  and  a  community  of  purpose,  as  it  is  solemnly  avowed;  and 
it  is  not  admeasured  by  the  international  law,  as  would  be  the 
case  wliere  a  i-oiitroversy  existed  that  involved  the  ownership  of  the 
seals,  for  instance,  if  they  were  claimed  to  belong  toeachCJovernnu'nt, 
and  the  tribunal  was  required  to  decide  as  to  which  of  them  has  the 
better  title. 

The  tribunal  is  intrusted  with  the  power  and  has  accepted  the  duty 
of  providing  Ibr  such  concurrent  action  of  the  two  Governments  as 
will  protect  aiul  ju'cserve  the  fur  seals,  when  it  shall  determine  that 
the  United  States,  in  virtue  of  its  own  sovereign  i>owers,  and  acting 
alone,  can  not  pi'cserve  tlieni. 

Jf  the  decision  of  any  of  the  questions  in  this  case  is  made  to  depend 
solely  upon  what  is  the  declaicd  international  law,  there  could  be  no 
ne«'d  f(»r  asking  otlier  nations  to  accept  and  ratify  the  award.  Tlioir 
acceptance  of  the  awaid,  as  tiie  correct  ruling  upon  questions  of  inter- 
national law,  would  siiiijdy  amount  to  an  aftirmance  of  the  legal  projm- 
sitions  involved  in  it.  All  nations  are  bound  by  the  international  law, 
and,  to  accei)t  a  decision  of  this  tribunal,  by  convention,  that  is  merely 
in  accordance  with  that  law,  would  only  bo  to  agree  to  do  that,  by 
treaty,  which  tliey  aie  already  bound  to  do  under  the  international  law 

It  is  because  no  one  can  say  that  the  international  law  determines 
these  questions,  that  it  is  ]>r(>i>osed  hereafter  to  establish  by  tieaty, 
in  which  all  the  States  are  recjuested  to  concur,  what  is  their  duty  in 
giving  protection  to  the  fur  s«>als. 

All  i)vopt'rty  originates  in  municipal  law  or  recognition,  and  no  prop- 
erty is  created, or  delined,  l)y  inteinational  law.  1  admit  the  intlueui'e 
proi)erly  to  be  exerted  by  the  Judicial  decisions  on  analogous  questions 
by  the  courts  of  England  and  the  United  States,  not  as  autlnuity,  but 
us  argument,  or  i)recedent. 

I  understand  that  the  right  and  duty  of  protecting  fur  seals  against 
indiscriminate  slaugiiter  is  much  more  distinct  and  obligatory,  than  is 
the  right  and  duty  of  i)rotecting  animals  that  are  less  vuliuible  and 
are  U(jt  pUiced  so  entirely  within  the  dominion  of  man. 


)u  the  whole 

s,  the  ques- 
of  the  hij^h 
B  purpose  of 
9  out  of  the 
avowed;  and 
juld  be  the 
'iship  of  the 
{Jovernnu'ut, 
Lhem  has  the 

itcd  the  duty 
►•ennneiits  as 
steiiuiue  that 
•s,  and  at'tiuij 

ule  to  depend 

e  could  be  no 

iward.    Their 

ions  of  inter- 

k'j;al  proi)o- 

ational  hiw, 

lat  is  merely 

do  that,  by 

lationallaw 

w  determines 

1  by  treaty, 

tlieir  duty  in 

and  no  prop- 
the  intlueuce 
)us  questions 
utluuity,  but 

eals  a;?ainst 
tory,  tlian  is 
valuable  and 


77 

1  understand  the  treaty  to  make  it  the  dnty  of  tlui  tribunal  to  con- 
sider the  entire  subject,  in  the  light  of  the  desire  of  the  two  nations  to 
juotect  and  preserve  the  fur  seals,  and  to  have  it  determined  whether 
the  United  States  has  the  ri{;ht  and  power  t(»  deal,  single  haiulod,  with 
the  subject  of  proper  regulations  to  protect  and  preserve  the  seal  herd. 

In  this  view,  the  attitude  of  the  two  governments  towards  the  in(pii- 
rics submitted  to  the  tribunal  is  special  and  excei)tional,  anil  tliis  is 
evidently  a  cardinal  feature  in  the  cases  submitted  to  the  tribunal. 
Xo  otlier  such  situation  ever  existed,  or  ever  can  exist,  between  two 
nations  and  it  must  be  provided  for,  if  at  all,  by  a  special  award,  upon 
special  facts,  and  not  merely  by  seeking  analogies  in  tiu'decision  of  <pu'S- 
tions,  in  numicipal  courts  and  between  private  litigants,  about  wihl 
animals  as  to  which  a  private  right  of  property  is  in  cpiestion.  In  either 
view  of  the  subject,  the  right  of  property  in  tur  seals  is  well  founded. 
The  rule  of  the  common  law,  and  the  Koman  law,  as  to  the  acciuisilioii 
of  property  in  animals  that  nm/erw  natitra;  when  applied  to  fur  seals, 
show  conclusively  that  these  auiuuils  are  capable  of  specitic  owncrshii) 
while  living. 

This  is  a  great  public  matter  that  has  engaged  the  attention  of  two 
Governments,  and  all  their  geographical,  industrial,  maritime,  and  gov- 
ernmental relations  enter  into  the  proper  consideration  of  the  (luesfions 
submitted  to  the  tribunal.  The  peace  between  the  nations  is  also  a 
grave  consideration  for  the  tribunal,  as  well  as  the  ellect  of  the  award 
Jipon  the  interests  of  llussia  and  Jai>an.  The  i)ower  to  ordain  regula- 
tions aud  to  make  them  an  essential  part  of  the  treaty  is  so  interlaced 
with  questions  that  are  judicial,  as  to  give  to  the  powers  of  the  tribunal 
and  the  award  that  it  shall  make,  only  such  elfect  as  the  treaty  pro- 
vides— an  etlect  peculiar  to  this  case  and  not  such  as  follows  the  judg- 
ment of  a  court. 

When  the  fur  seals  are  projyerly  protected  and  jireserved  by  the  award 
of  this  tribunal,  the  purpose  of  its  creation  will  have  been  accom- 
plished aud  the  full  limit  of  its  duties  will  have  been  reached.  Then  the 
appeal  of  these  two  great  powers  to  other  nations,  to  accejjt  the  award, 
will  contain  no  assertion  that  the  award  is  a  collect  tinding  u|»on  the 
international  law,  to  which  all  nations  are  b(»uiid,  without  convention, 
but  an  affirmation  that  it  is  a  just  and  salutary  arrangement,  reached 
by  treaty,  and  suited  to  the  purpose,  in  the  L'aeilic  Ocean  and  in  all 
other  seas,  of  i>reserving  seal  life  and  of  I'cstoring  it  to  its  condition 
before  it  was  so  nearly  destroyed  iii  the  Antarctic  Ocean,  and  so 
seriously  threatened  with  extermination  in  the  North  Pacilic  Ocean. 


P:: 


78 


I  believe  that  in  every  »tv\}  we  take,  and  in  every  decision  wo  malve 
in  tills  matter,  we  sliunld  avoid  abstract  (questions  and  Inquiries  that 
can  have  no  practical  cllcct  ui)on  tlie  avowed  purpose  of  the  parties  to 
protect  and  preserve  the  lui- seals.  The  attitude  of  the  two  (lovern- 
nients  towards  the  adniltte<l  duty  of  preserving  the  fur  seals  in  the 
future;  the  powers  they  have  exercised  jointly  aiul  seveially,  iner  tlie 
siil»ject  in  the  past  and  in  this  treaty;  thecoiitlj;urationof  the  Aleutian 
p«Miinsul;i  and  the  islands  of  tliat  arcliii)e]aj"();  tlui  peculiarities  of  seal 
life,  and  the  destructive  methods  of  seal  hunting;'  in  tiie  oiien  sea;  tlie 
proi)er  restriction,  or  necessary  prohibition  to  be  imposed  upon  pelajjic 
sealing;  theriyhtof  the  IJiiitt'd  States  to  defend  and  protect  its  powers 
of  {ifoverninent,  its  revenues,  and  to  preserre  its  industry  on  the  islands; 
arc  all  brought  within  the  s(!()pe  of  this  inquiry,  by  the  provisions  of 
this  treaty,  and  are  all  to  be  considered  in  dctcrminiiiy  what  are  the 
just  and  eiiuitable  rights  and  the  duties  of  the  high  contracting  powers. 

Not  merely  the  rights  that  would  result  in  a  judgment  for  one  i»arty 
or  the  other  in  a  suit  by  the  United  States  in  a  municipal  court  for  the 
recovery  of  the  value  of  a  seal  killed  by  a  pelagic  hunter  on  the  high 
st^is,  but  that  the  just  and  honorable  inteiiiationalobligatictn  resting  by 
agreement  upon  both  ilovernments,  will  lind  authentic  and  linul  expres- 
sion in  the  award  of  this  tribunal. 

On  all  hands  it  is  admitted  that  the  award,  when  rendered,  will 
constitute  a  stipulation  of  the  treaty  in  the  same  sense  as  if  it  had 
been  written  in  the  text  of  the  agreement  by  the  high  (!ontracting  jiowers. 
This  being  so,  and  the  ])ower  of  this  tribunal  to  determine  and  estab- 
lish concurrent  regulations  bcinij  a  power  to  ordain,  and  not  a  juridical 
jhnccr  to  divide,  and  both  being  united  in  the  tribunal  and  subject 
largely  to  its  discretion,  the  facts  that  bear  upon  the  judicial  impiiries 
and  upon  the  poweis  of  ordination  are  the  same,  are  made  identical  by 
tiie  treaty,  and  are  to  be  considered  as  one  entire  body  of  evidence,  in 
respect  of  both  classes  of  ])owers. 

Mo  absti'act  (iiiesti(Ui  of  law  is  submitted  to  this  tribunal.  The 
law  that  is  int(!ii(lcil  to  govern  this  case  in  all  its  ])arts  and  phases 
is  the  law  of  justice,  comity,  trade,  commerce,  hnnianity,  good  will,  and 
peace,  in  carrying  out  a  common  i»uriiose  of  protecting  and  i)reserving 
the  fur  seal  species  in  tiu',  interests  of  c,ommerce  upon  the  facts  pre- 
sented to  the  tribunal  and  such  as  are  within  the  reach  of  its  judicial 
knowledge.  It  is  npon  this  view  of  the  duties  of  the  triluinal  and  of  its 
powers  and  of  the  rights  of  ihe  parties  and  the  complexion  they  have 


7i) 


don  wo  make 
luiuirios  (liiit 
tlio  parties  to 
two  Cloveni- 
seuls  in  ihii 
\lly,  over  the, 
the  Aleutian 
■iritics  of  seal 
)l)en  sea;  the 
npon  i)ela;:ic 
net  its  iHiwers 
n  the  islands; 
provisions  of 
what  are  the 
letiiig  powers, 
lor  one  i)arty 
I  court  for  the 
r  on  the  hij^h 
ion  rest  ill  ••by 
d  linal  exi)res- 

endered,  will 
as  if  it  had 
i(*tinj'i)owers. 
iiie  and  estab- 
lut  a  jiuidical 
and  subject 
cial  inipiiries 
>  identical  by 
evidence,  in 

I'ibnnal.  The 
and  phases 
lood  will,  and 
Id  i)reserving 
llie  facts  pre- 
If  its  judicial 
Inal  and  of  its 
)n  they  have 


pivcn  to  these  inqnirics  and  questions  by  the  treaty  that  I  will  oxamino 
the  subject. 
The  very  general  manner  in  which  the  questions  submitted  to  arbi- 


the 


tration  are  stated  m  tiie  treaty,  and  tiie  nKU'tinite  statement 
claiius  of  the  respective  g«)verninents,  the  absence  of  direct  issues  of 
factor  law  in  the  submission,  and  the  unlimited  range  of  inijuiry  as 
to  all  facts,  whether  historical  or  judicial  in  character,  the  general 
form  in  wliich  all  questions  are  stated  in  the  treaty,  seem  to  demand 
a  broad  and  just  award  by  the  tribunal  that  will  cover  a  great  con- 
troversy that  is  entirely  new.  In  the  treaty  of  181)2,  differing  from  all 
former  treaties  on  like  matters,  the  tacts  which  constitute  the  foundation 
of  the  claims  of  tlie  resi)ective  parties  are  not  stated  liypothetically,  or 
in  any  form,  nor  are  the  questions  that  arise  on  those  fa«;ts  stated  in 
any  issuable  form,  nor  are  the  rules  of  law  or  justice  stated  nnder 
which  the  tribunal  shall  ascertain  and  admeasure  the  rights  of  the 
parties. 

In  this  treaty  everything  is  left  to  the  ascertainment  and  the  deter- 
mination of  the  tribunal  within  very  broad  limits  of  incpury  ui)on  cer- 
tain topics.  The  only  separate  and  specitic  duty  imposed  on  the  tri- 
bunal is  that  they  will  ascertain  and  declare  the  facts,  and  apply  the 
law  that,  in  their  opinion,  gives  a  true  answer  to  ccitain  sweeping 
inquiries  stated  in  Article  VI  of  the  treaty.  This  is  an  exceedingly 
broad  and  comprehensive  grant  of  power  and  discrcti<»n  to  this  tribunal 
of  arbitration,  in  reference  to  a  subject  in  which  all  civilized  countries 
are  interested,  and  is,  to  many  uncivilized  people,  a  source  of  supply 
of  food  and  raiment. 

These  great  nations  found  occasion  to  ]noject,  if  not  to  formulate  and 
to  establish  by  impartial  arbitration,  rew  rules  of  right  and  convenience, 
and  also  of  jurisdiction,  that  are  not  distinctly  stated  in  the  inteiiiational 
law,  for  the  prote(!tiou  and  preservation  of  the  fur  seal,  to  be  eid'orced 
outside  the  jurisdictional  limits  of  the  two  governments  and  of  all  other 
governments.  In  doing  this  they  agreed  to  bind  themselves  to  accept 
and  abide  by  the  rules  that  this  tribunal  shall  adopt,  and  to  coiiperate 
iu  securing  the  adhesion  of  other  powers  to  them.  A  course  somewhat 
simil.ar  was  followed  by  them  in  the  Treaty  of  Washington,  of  ISTl. 

When  the  nature  of  this  splendid  fur  is  considered,  and  the  fact  that 
it  is  the  only  source  of  supi)ly  of  largo  pelts  that  is  available  for  the 
uses  of  mankind;  and  that  the  fur  seal  is  the  oidy  fur-bearing  animal 
thatcau  be  preserved  by  law,  on  the  i>rinci])leof  douicsticution;  and  that 


80 


m 

n-  , 

■■'■ii  " 
Vi 


% 


its  value,  ami  the  easy  prey  it  oflVrs  to  a  eonibinatioii  of  vessels  and 
weapons  for  itH  captiir*'.  have  (lestroyed  tlio  species,  in  a  eoniniercial 
senH(^,  in  tlie  sonlliern  lieniisplicre,  and  are  ri.i)idly  destroyinj;  it  in  tlie 
waters  of  tlio  nortli  Pacidc,  it  would  only  i)esurpiisin{j:  if  Gu'at  liritain 
and  tlie  United  Slates,  whose  i»eople  are  alono  enjfajfed  in  this  work 
of  destruetion,  should  not  liav*'  agreed  to  provide  some  elTeetual  means 
for  the  protection  and  preservation  of  this  valuable  animal. 

In  the  eonhdent  cxijectation  that  all  tlie  countries  where  fur  seals  are 
bred  will  ad(>|)t  the  methods  of  jn'otection  and  preservaticui  that  this 
tribunal  shall  provide,  to  operate  ontsido  the  acknowledged  limits  of 
exclusive,  sovereign,  national  jurisdi(;tion,  if  they  are  found  to  be  wise, 
Just,  and  practical;  and  that  the  (loveinments  concerned  will  take 
proper  care  of  these  valuable  animals,  on  their  islands  and  coasts; 
these  two  GovernnuMits  ha^'e  instituted  a  plan  for  securing  these  ends, 
which  is  well  adai)ted  to  that  ])urp()se.  That  result  will  be  secured  if 
the  tribunal  will  exert,  firmly  and  wisely,  the  high  powers  confided  to 
them. 

The  confidence  felt  by  these  Governments  in  the  l)enelicial  results  of 
arbitration,  is  fully  Justified  by  their  past  experience,  and  has  led,  doubt- 
less, to  the  incr»'ase  of  powers  and  discretion  given,  in  the  treaty  of  1892, 
to  this  tribunal  of  arbi(rati<Mi. 

The  whole  civilized  world  is  interested  in  the  result,  and  many  Justly 
expect  tiiat  the  award,  when  made,  will  cover  the  great  question  of  the 
proper  protec-tion  and  preservation  of  the  fur  seal  species  in  such 
manner  that  the  regulations  may  win  the  approval  and  secure  the 
adhesion  of  all  the  maritime  powers. 

It  would  be  a  serious  dereliction  of  duty  on  the  part  of  the  tribunal 
if  they  should  fail  to  deal  with  this  great  question  in  the  broadest  way, 
included  in  the  jjurview  of  their  po\Vers,  and  shouldcouline  their  decla- 
rations and  award  to  narrow  or  technical  grounds,  or  to  a  simple  decla- 
ration of  rights  of  property  in  fur  seals,  or  to  the  powers,  or  Jurisdiction 
to  preserve  or  i)rotect  them  in  Bering  Sea,  .and  should  provide  no  reg- 
ulations under  which  these  rights,  i)owers,  and  Jurisdiction  shouhl  bo 
enforced,  or  exerted,  wherever  the  seals  are  found. 

The  necessity  for  protecting  this  property,  lis  poKfens,  was  not  fully 
understood,  and  could  not  be,  until  the  close  of  the  sealing  period  for 
18!)L*,  after  the  treaty  had  been  concluded.  In  1S91  the  destruction  of 
seal  life,  resulting  from  the  eatcli  of  .'{(),()()0  seals  in  Bering  Sea,  by 
pelagic  hunting,  was  estimated  as  being  at  least  equal  to  the  number 


'cssols  iin«l 
'oimuenial 
iifT  it  ill  tl»(3 
eiit  liririiin 
this  work 
•tual  nu'iius 

'iir  souls  iue 
m  tliiit  this 
ed  limits  of 
[  to  Im'  wis*', 
ill  will  take 
aiul  coasts; 
r  tht'se  ends, 
)e  secured  if 
3  coiilitl*-'*!  to 

•ial  results  of 
aslod,doubt- 
reaty  of  1892, 

I  many  justly 

liestion  of  the 

cics  in  such 

d  secure  the 

the  tribunal 
broadest  way, 
lie  their  decla- 

siiiipledecla- 
kr  jurisdiction 
lovide  no  reg- 
ion should  bo 

was  not  fully 
hii<>-  period  for 
llestruction  of 
I'.ring  Sea,  by 
the  number 


81 

killed  on  the  seal  islands.  And  this  was  the  result  d«'si>ile  the  fact 
tiiat  the  iihhIiis  viimdi  for  that  year  was  sij;ned  on  June  ]'*. 

The  moiluH  rivcmli  for  iSOii  was  si;;ned  on  the  ISlli  of  April,  before 
the  ])elaj;i<'  hunting  had  orcurred  lor  that  year.  In  both  these  agree- 
nients  of  hSDl,  and  of  I.S'.IL'.  which  were  inl«'n<ie<l,  in  the  first  <»ne,  to 
carry  out  the  i>roitosed  treaty,  and  the  treaty  as  agreed  ujion  and 
signed,  in  the  secoiul  one,  a  proliiitition  of  pelagic  sealing  was  agreed 
upon  and  enfon-ed  against  the  p«'oph'  of  each  (loveriimi-nt.  These 
were  "concurrent  regulations,"  and  the  necessity  for  them  was  thus 
a<linitted  by  both  Gov«'rnments.  They  were  not  extended  to  the  N»>rtli 
Padfic,  because  the  <lestructive  eU'ects  of  pelagic  hunting  there  were 
not  then  known  to  the  United  States. 

Now,  it  is  ascertained  that  the  seal  hunting  in  the  op«'n  ocean  ami 
at  the  entrances  to  l»ering  Sea  is  even  more  destructive  beyond  the 
jurisdicthunil  limits  of  both  (MUintries  than  it  ever  was  in  IJeiing  Sea. 
These  facts  have  been  develoitetl  since  the  cases  of  the  parties  were 
delivered  to  the  arbitrators. 

I  am  led  to  restate  these  facts  in  part  and  to  repeat  arguments  I  have 
bad  the  honor  to  submit  upon  previous  phases  of  this  discussion,  because 
of  my  earnest  desire  that  the  award  of  the  tribunal  should  measure 
up  to  the  opportunities  and  demands  of  a  great  occasion  and  should 
recommend  itself  to  general  acceptance  by  the  civilized  nations. 

The  question  stated  in  "point"  live, of  Article  VI,  of  the  treaty,  re- 
lates to  the  right  of  property  and  the  iight  of  protection  of  that  i)rop- 
erty,  which  the  tribunal  may  fully  decide  without  t(niching  the  ques- 
tion of  the  exclusive  jurisdiction  of  liussia  and  the  United  States  to 
provide  for  the  protection  of  that  property,  if  the  right  to  it  is  found  to 
exist.  Those  questions — "points" — as  to  the  exclusive  jurisdiction  of 
the  United  States  arose  out  of  claims  that  liussia  is  allege<l  to  have 
asserted  and  exercised  "prior  and  up  to  the  cession  of  Alaska  to  the 
United  States,"  without  reference  to  the  question  whether  those  claims 
were  well-founded  in  custom,  in  luitural  or  moral  law,  or  in  the  law  of 
nationH. 

The  claim,  or  question,  stated  in  point  5  of  Article  VI  has  a  wholly 
diflferent  foundation.  It  is  a  claim  of  "property  in  the  fur  seals  fre- 
quenting the  islands  of  tlie  United  States  in  Bering  Sea,"  and  the  cor- 
relative right  of  protecting  them  when  such  seals  are  found  "  outside 
of  the  ordinary  three-mile  limit,"  to  the  same  extent  that  such  right 
U495  M 6 


i 


Hi 


1-1 . 


m 


82 

rxintH  and  may  bo  protected  wImmi  tlie  seals  arc  found  inHide  the 
a(^kiio\vled^<Ml  t(>rritoi'ia1  limits  oi'tliu  islaiidn. 

This  rlaiin  of  proiM'ity  in  tlic  IJniti-d  Htates,  if  it  exists  and  so  far 
as  it  is  not  affected  by  ]>i-esci'i|ition,  is  based  upon  tlie  habits  of  tlie 
animals  whi(;)i  make  them  (h)mesti('iit<><l  |)roperty  and  subjects  them 
absobitely  to  tlie  ])ossession,  dominion,  iiiid  use  of  the  United  States 
by  an  irrevocable  law  of  nature,  which  supplies  a  just  foundation  for 
i; "  protective  lefjislatioi.. 

The  rifjfht  of  "exclusive  jurisdiction  of  the  United  States'*  to  protect 
the  seals  "found  outsitle  the  ordinary  three-mih'!  limit"  is  a  ri;^ht  that 
is  based  on  moral,  or  municipal,  or  international  law,  or  u])on  all  those 
laws  cond)ined  in  support  of  justice,  the  protection  of  commerce,  and 
in  aid  of  humanity  and  the  peace  and  good  will  of  nations. 

The  right  of  the  United  States  to  this  property  is  neither  greater  nor 
less,  when  it  is  based  on  the  nature  and  habits  of  the  seals,  because 
Russia  may  have  asserted  or  excrciised  "  exclusive  rights  in  the  seal 
_/i.v/<cn'e.v "  in  Bering  Sea;  nor  is  the  right  to  jirotect  the  property 
necessarily  dependent  upon  the  answer  to  the  question,  "  What  excltt- 
Hive  jurisdiction  in  Bering  Sea  did  Bussia  assert  and  exercise?"  While 
this  right  and  this  jurisdicti(ui  are  ccnrelated,  they  are  not  identical, 
noi'  do  they  dei)end  necessarily  upon  each  other  in  the  form  in  wliich 
they  are  stated  in  the  five  points  of  Artii'Je  VI. 

If  the  arbitrators  find  that  the  United  States  have  nonexclusive 
jurisdiction"  to  protect  "the  fur-seals  in,  or  habitually  resorting  to  the 
r>ering  Sea,"  such  a  deciision  must  nu'an  that,  as  between  the  United 
States  and  Great  Britain,  whose  subjects  claim  the  right  to  take  the 
seals  wherever  found  "outside  the  jurisdictional  limits  of  the  respective 
Governments,"  the  consent  of  Great  Britain  is  necessary  in  that  area 
of  the  sea,  to  supjdy  such  lack  of  jurisdiction  by  "concurrent  regula- 
tions" to  suppress,  or  control,  pelagic  hunting.  AtkI,  if  the  Arbitra- 
tors hold  that  they  have  no  power,  in  tluvt  event,  to  protect  the  seals 
by  ordainiiig  concurrent  regulations  for  that  purpose,  and  if  the  United 
States  have  no  lawful  power  to  protect  them,  and,  if  (Jreat  Britain  will 
not  consent  to  a  joint  protection  of  them,  they  will  perish  utte""ly. 

If  the  arbitrators  hold  that  the  United  States  have  the  "exclusive 
jurisdiction"  to  protect  and  preserve  the  fur  seals  "outside  their  juris- 
dictional limits,^^  (which  is  a  solecism),  because  they  are  the  exclusive 
owners  of  the  seals;  or,  if  they  hold  that  pelagic  hunting  outside  the 
ordinary  territorial  limits  of  three  miles  around  the  seal  islands  does 


' 


83 


nnUlo  tlio 

md  Ro  far 
)itrt  of  tlio 
ects  tlioin 
0(1  States 
ilatiou  fur 

to  protect 
right  til  at 
II  all  tlio^o 
tnerce,  and 

greater  nor 
Is,  becaiiso. 
I  in  the  seal 
e  property 
Vhat  exclxi- 
;?»  While 
t  idontical, 
a  iu  which 

cxclusivp 
iiig  to  th« 

the  United 
o  take  the 
respective 
that  area 
nt  regula- 
e  Arbitra- 
t  the  seals 
the  United 
Jritain  will 
te-ly. 

"exclusive 
heir  juris- 
i  exclusive 
utside  the 

Hiands  does 


not  Ro  aflTort  Heal  life  as  to  mak»>  it  noceRsary  to  ostahllRli  ropnilaf  ions  for 
the  suppression  or  control  of  that  prarticre,  they  will  have  no  need  to 
make  any  award  farther  than  t4»  dismiss  all  that  jtart  of  the  suhiiiissioii 
and  leave  the  questions  sulmiitted  to  them  undtrided. 

This  would  not  1)0  a  "result  of  their  proeeediiifis"  that  would  be  (liial, 
"as  a  full  and  perlWit  st^tlement  of  all  the  ([uestions  refene*!  to  the 
arbitrat<us,"  but  would  leave  the  (lovernmeiits  confronted  to  each 
other,  with  no  barrier  between  them  to  prevent  hostilities  in  future. 

Jf  the  arbitrators  should  hold  that  the  United  States  "has  exriusive 
jurisdiction"  to  protect  the  fur  seals  on  the  open  ocean,  because  the 
seals  are  their  exclusive  property,  and  if  they  should  stop  at  that  iletOa- 
rati<ui,  many  questions  as  to  the  manner  of  exerting  that  right  or 
power,  which  lie  bey<md  that  <letermination,  would  arise;  such  as  the 
right  of  visitation,  search,  and  seizure;  and  also  (|uestions  as  to  the 
ettect  of  statutes  of  the  Unitexl  States  beyond  the  limits  of  their  ter- 
ritorial jurisdiction,  and  also  the  (|Ucstioii  of  thecoii<leniiiatiou  oi  ships 
belonging  to  Great  Britain,  in  the  courts  of  the  United  States. 

Proper  concurrent  regulations,  established  by  this  tribunal,  would 
result  in  establishing  the  iieaceof  nations,  and  the  protection  and  jues- 
ervation  of  a  valuable  species  of  animals,  the  destruction  of  which 
would  seriously  injure  commerce,  would  <leprivc  many  thoiisamls  of 
people  of  remunerative  employment,  and  would  leave  a  blot  ou  the 
civilization  of  the  age. 

To  hold  that  there  is  no  necessity  for  the  regulation  of  pelagic  sealing 
by  some  power  or  some  authority  is  to  ignore  the  evidence  in  the  <!ase 
and  the  joint  report  of  the  commissioners  appointed  under  this  treaty, 
and  the  statement  and  opinions  of  the  diplomatic  representatives  of 
both  countries  and  of  Russia  and  Japan. 

Canada  alone  has  formerly  contended  that  no  necessity  exists  for 
regulating  pelagic  sealing,  but  that  the  Government  has  so  far  modified 
its  views  as  to  agree  to  the  draft  convention  submitted  to  Mr.  Blaine  by 
Lord  Salisbury,  which  proposed  a  close  time  for  pelagic  sealing  in  the 
North  Pacific  Ocean  and  in  Bering  Sea.  If  Canada  has  not  gone  far 
enough  in  the  light  direction  sin;  has,  at  least,  admitted  the  necessity 
of  some  progress,  and  has  shown  her  willingness  to  conform  her  actior 
to  the  views  uniformly  expressed  by  the  Government  of  Her  Majesty, 
that  the  seals  in  Bering  Sea  and  the  North  Pacific  should  be  preserved, 
and  that  unrestricted  and  indiscriminate  sealing  sl.ould  not  ne  allowed. 
There  is  no  dispute  that  this  has  been  the  avowed  purpose  of  both 


84 


m 


4  •  ! 

:1V  ' 


I 


GovernmoiitH  in  tlit'ir  lonj;  uimI  oxIiauHtivv  diplomatic  concspoiuU'iirci 
ami  iiep)tiiiti'>ns,  and  in  a);r(>(;in{{  to  arbitratiuii  upon  ihv,  wiudu  ^'Hub- 
Jocfot"  protecting  and  picscrvin};  the  Inrseal  in  llcring  8ca,  and  ro- 
Hoi-tin<;tooi'lVcqucntingtliatHca.  Itut  I  tidnk  this  matter  is  ot'Hunicicnt 
impurtuncc  in  its  bearing  upon  the  duties  oi'  tliis  tribunal  to  Justify  nu) 
in  a  concise  statement  of  my  views  as  to  how  tiie  <|uestionH  of  (litVercnce 
arose  between  tlio  United  States  and  Great  ISritain,  and  how  their 
treatment  ^ave  rise  to  the  questions  tbrnudated  in  the  treaty. 

The  Uidted  States  seized  some  of  the  sealing  vessels  empl(»yed  in 
lierin;;  Sea  and  they  were  condemned  in  their  <-ourts  in  Alaska,  and 
tliereupon  the  Government  of  Great  Britain  assumed  the  protection  of 
vessels  so  employed  under  her  tlajf,  an<l  made  protest  to  the  Govern- 
nurnt  of  the  United  States  apiinst  their  seizure  and  coiiliscation  and 
ajj^ainst  the  arrest  and  punishment  of  her  subjects  sailing  under  the 
llritish  tlaj;,  and  uuide  a  (tlaim  for  damages  in  their  behalf. 

Thetirst  seizure  was  an  American  vessel,  Aujjust  1,  1886.  Thus  it 
was  this  diplopiatic  controversy  had  its  orij>;in  in  the  insistence  of 
Canada  upon  the  claim  of  an  unrestricted  ri^ht  of  pela^'ic  sealin 
without  regard  to  the  preservation  of  seal  life,  or  the  rights  of  tin- 
United  States,  or  their  interests;  and  it  was,  at  first,  conlined  to 
pelagic  huuting  of  fur  seal  in  Bering  Sea.  It  was  the  abuse  that  grew 
up  under  the  asserted  right  of  pelagic  sealing,  as  it  was  practiced  by 
the  Canadians,  and  not  the  arrest  of  the  vessels  that  gave  origin  to 
this  controversy.  The  initial  point  of  the  negotiations  that  resulted  in 
the  treaty  of  February  29, 1892,  was  established  in  1887.  It  was  ex- 
l)anded  into  this  treaty  and  has  drawn  after  it,  as  au  incident,  the 
contention  relating  to  jurisdiction  over  Bering  Scta. 

The  contentious  of  the  two  Governments  were  conf.'ied  to  questions 
that  aflected  their  respective  claims  of  rights,  within  Bering  Sea,  when 
Mr.  Phelps,  minister  to  Grt  ,t  Brittain,  on  November  11, 1887,  brought 
the  subject  to  the  attentior  f  Lord  Salisbury,  and  then  proposed,  on 
the  part  of  the  Goverume  of  the  United  States,  "that  by  mutual 
agreement  of  the  two  Gov<  nments,  a  code  of  regulations  should  be 
adopted,"  etc.,  for  the  preser  atiou  of  the  seals  in  Bering  Sea,  "  entirely 
irrespective  of  any  questior  jf  conflicting  jurisdiction  in  these  waters." 

Mr.  Phelps  wrote  to  Mr.  Bayard,  as  follows  ; 

His  Lordship  promptly  acquiesced  in  this  proposal,  on  the  part  of 
Great  Britain,  and  suggested  that  I  should  obtain  from  my  Govern- 
ment and  submit  to  him  a  sketch  of  a  sys^tem  of  regulatiom  which 
would  be  adoijuate  for  the  purpobe. 


lo  "  Hub- 
,  ;iinl  10- 
iitnicicnt 
stify  nut 
illcrt'iu'c 
i>w  their 

il(»yo(l  in 
iska,  and 
cction  of 
Govt'in- 
ition  and 
iider  the 

Thus  it 
stence  of 
c  sealiii 
ts  of  th* 
iitined  to 
lat  gvi'w 
ticed  l»y 
origin  to 
suited  in 
was  ex- 
dont,  tl>e 

ucstions 
ea,  when 
brought 
)osed,  on 
mutual 
hould  bo 
entirely 
waters." 


part  of 
iGovern- 
wUicU 


85 

On  April  Irt,  1SSS,  Lord  Siilisbnry,  with  a  view  to  mooting  the  wishes 
of  the  llusHian  (iovernincnt  res|>e<-ting  the  waters  .surrounding  Hoblieii 
Island,  suggested  to  Mr.  White  "tliat  besides  the  whole  of  Hering 
Sea  those  portions  of  the  Sea  of  Okhotsli  and  of  the  ''acifle.  Ocean 
north  <»f  latitude  47  degrees  shouhl  beineliuled  in  the  iiroposed  arrange- 
MH-nt."  (Hee  Appendix,  Vol.  i.  to  ('use  of  the  United  States,  p.  170.) 
Tliis  (Ix<m1  the  area  of  the  "close  tliuj"  UOO  tnih's  south  of  the  northern 
border  of  Washington!  State.  lie  a'so  suggested  tliat  the  close  time 
extend  from  April  lo  to  October  1. 

Mr.  liayard,  tliroiigli  the  plenipotentiaries  of  the  United  States,  pre- 
sented the  i)roposal  nuido  to  Great  Britain  and  the  assent  of  T^ord 
Salisbury  to  the  same,  to  thoGovernnu'uts  of.Iapan,  Russia,  Gernnniy, 
and  Sweden  Norway,  and  asked  their  concurreiu-ci  in  an  international 
<'onvention  to  settle  the  (piestion  of  pelagic  fur  seal  limiting,  on  t\w 
general  basis  of  the  informal  agreement  leiu-Iu'd  by  the  two  Govern- 
nients.  Both  Japan  and  Russia  cordially  assented  to  sucli  a  negotia- 
tion, and  Sweden  and  liiU'way  said: 

The  Koyal  Government  having  no  interest  in  the  seal  fisheries,  Tlis 
Majesty  thinks  then^  is  no  u<'e<l  to  take  part  in  any  treaty  in  referen«'0 
tiu^reto  on  tlu'  pai't  of  tlw  United  Kingdoms.  He,  however,  expresses 
the  desire  ,liiit  a  mutually  beneficial  accord  may  l)e  arrived  at  lietween 
tlie  interested  powers,  and  that  the  sanu^  may  be  maintained,  with  a 
reservation  that  tlie  powers  not  at  present  interested  may  join  in  such 
sin  arrangement  in  future,  if  tliey  desire. 

Japan  replied  to  the  note  of  the  United  States  October  8, 1887,  and 

said : 

The  nnreguhited  and  indiscriminate  slaughter  of  the  sea  otter  as 
well  as  the  fur  seal  on  the  <;oasts  of  .Tapan  an<l  in  their  coterminous 
waters  is  a  subject  wliicii  has  for  many  years  engagc«l  tlu^  attenti<ui  of 
the  Ini]u>rial  (loveriimeiit.  Tlie  experience  of  His  JNIaJesty's  Govern- 
ment justifies  the  belief  that  the  end  sought  to  be  obtained  can  be 
best  secured  by  means  of  a  colijuratii'c  i»teniafional  action,  and  they 
therefore  ciudially  approve  of  the  suggestions  of  the  honorable  the 
Secretary  of  State. 

The  Kussian  G(>vernnient  on  November  25, 1887,  said: 

Mr.  Wurts,  under  date  of  August  22  (Sej  tembcr  2),  was  good 
enough  to  communicate  to  me  the  views  of  tl"i  Government  of  the 
United  States  of  Ameri<!a  upon  the  subjei't  of  the  desirableness  of  an 
understanding,  anxuig  the  Governments  concerned,  for  the  regulati<m 
of  the  t.aking  (la  chass<i)  of  the  for  seal  (lontres)  in  tln^  licring  Sea,  in 
order  that  an  end  might  be  put  to  those  inconsiderate  practices  of 
extermination  which  threaten  to  dry  up,  at  their  source,  an  important 
branch  of  international  (commerce. 

We  concur  entirely  in  the  views  of  the  Government  of  the  United 
States.  Like  it,  we  also  have  been  for  a  long  time  consi<lering  what 
means  could  be  taken  to  remedy  a  state  of  things  which  is  prejudicial 


86 


W 

w 


h' 


not  only  to  commerce  and  to  revenue,  but  which  will  soon  work  disas- 
trons  I'esults,  not  only  to  the  tceUbving  hut  even  to  the  ejcistence  of  our 
people  ill  the  extreme  Northwest.  The  establishment  of  a  reasonable 
lule,  and  of  a  lawful  system  in  the  use  (l'exi)loitation)  of  the  resources 
ichich  furnish  their  only  industry,  is  for  those  people  of  vital  impor- 
tance. 

The  j)ressin}>-  interest  which  the  Imperial  Government  has  been  thus 
called  to  consider  had  already  suggested  to  it  the  idea  of  an  interna- 
tional agreement^  by  which  this  interest  might  lind  its  most  efficientpro- 
tcction.  It  is  by  this  way  that  the  ditt'erent  questions  involved  can  be 
best  resolved,  and  among'  which  there  exists,  in  our  opinion,  a  close 
connection. 

The  proposition  of  an  aecord  emanating  from  the  Government  of  the 
United  States,  and  which  we  take  pleasure  in  considering  as  a  step 
toward  that  general  sohition,  must,  of  course,  but  meet  the  sincere 
sym]>athics  of  the  Imperial  Government  and  its  active  support;  and 
tliis  1  pray  you  to  make  known  to  the  cabinet  at  Washington.  Please 
receive,  etc. 

Thus  the  four  powers  that  include  between  their  respective  territorial 
l)ossessio'.is  all  the  waters  of  the  North  Pacific  Ocean  and  of  the  seas 
in  which  the  Alaskan  I'ur-seal  is  found,  were  in  complete  accord  and 
agreement  that  ■pelagic  sealing  should  be  regulated  by  their  mutual  consents 
And  Lord  Salisbury,  as  late  as  February,  1888,  informed  Mr.  Phelps 
that  he  assented  to  Mr.  Bayard's  proposition  for  a  close  time  for  fur 
seals  between  A\}v'\\  irt  and  November  1  in  the  Bering  Sea,  and  stated 
that  he  would  "join  the  United  States  in  any  preventive  measure  it  may 
be  thought  best  to  adoi)t,  by  orders  issued  to  the  naval  vessels  in  that 
region  of  the  respective  Governments."  (See  Ai)pendix  to  American 
Case,  vol.  1,  p.  175.) 

The  negotiations  progressed  thus  favorably  until  Canada  interposed 
to  prevent  the  settlement  of  the  (juestion  as  to  which  four  great  powers 
had  i)racti(!ally  agreed,  and  asserted  that  no  close  time  was  necessary. 

Canada,  without  diplomatic  power  or  responsibility,  still  had  power, 
through  her  political  relations  with  Great  Britain,  to  control  and  em- 
barrass the  diplomacy  of  the  Imperi.d  (lovernment,  even  in  antagonism 
with  the  interests  of  the  British  people,  as  stated  by  Lord  Salisbury. 

Without  (jnestioning  tlie  riglitor  duty  of  Great  Britain  to  consult  tlie 
interests  or  wishes  of  her  colony  in  the  nnitter,  it  is  a  serious  and  dan- 
gerous embarrassment  to  the  United  States  that  they  must  deal  only 
with  Great  Britain  in  settling  difficulties  that  relate  to  the  conduct  of 
the  Government  of  Canada.  She  issues  fishery  clearances  to  vessels 
belonging  to  her  ^icople,  and  under  them  the  citizens  of  the  United  States 
are  sheltered  in  their  violations  of  United  States  statutes;  and,  w  hen 


87 


joon  work  disas- 
!  existence  of  our 
of  a  reasonable 
of  the  resources 
3  of  vital  iuipor- 

iit  bas  been  thus 
la  of  an  interna- 
iiost  efficient  pro- 
i  involved  can  be 
opinion,  a  close 

Bvernment  of  the 
ilering  as  a  step 
meet  the  sincere 
ve  8Ui)port;  and 
hiugtou.    Please 

pective  territorial 
n  and  of  the  seas 
iplete  accord  and 
lir  mutual  consent. 
rined  Mr.  Phelps 
close  time  for  fur 
g  Sea,  and  stated 
ve  measure  it  may 
al  vessels  in  that 
ndix  to  American 

ianada  interposed 
four  great  powers 
ne  was  necessary, 
still  had  power, 
control  and  em- 
en  in  antagonism 
y  Lord  Salisbury, 
ain  to  consult  the 
serions  and  dan- 
sy  must  deal  only 
to  the  conduct  of 
trances  to  vessels 
the  United  States 
,tutcsj  and,  when 


they  are  arrested  for  the  wrong.  Great  Britain  is  called  upon  to  inter- 
pose, at  the  moment  when  she  is  negotiating  with  the  United  States  for 
its  suppression.    This  is  a  very  embarrassing  situation. 

On  the  13th  of  August,  1888,  Mr.  Phelps  held  a  conversation  with 
Lord  Salisbury,  and  urged  the  completion  of  a  convention  between  the 
United  States,  Great  Britain,  and  Kussia,  which  had  previously  been 
the  subject  of  discussicm  between  these  Governments.  (See  Appeiulix, 
vol.  1,  to  Case  of  the  L^nitcd  States,  p.  182.)     Mr.  I'helps  says: 

This  convention  had  been  virtually  agreed  on,  except  in  its  details; 
and  the  Kussian  as  well  as  the  United  States  Government  were  desir- 
ous to  have  it  completed.  The  consideration  of  it  iiad  been  suspended 
for  communication  by  the  JJritish  Government  with  the  Canadian  Gov- 
ernment, for  which  i)urpose  an  interval  of  several  mouths  had  been 
allowed  to  elapse.  Lord  Salisbury's  attention  was  repeatedly  recalled 
to  the  subject  by  the  United  States,  and,  on  those  occasions,  the  answer 
was  that  no  reply  from  tlie  Canadian  autli(»ritie8  had  arrived.  During 
this  interval,  Canada  was  aiding  with  all  its  powers,  as  a  Government, 
in  supporting  and  aggravating  tlio  practices  wlii<'h  Great  Britain  de- 
sired to  repress,  and  tlnis  lei't  her  in  a  most  (hjubtful  and  disagreeable 
attitude  in  her  relations  with  the  United  States. 

Mr.  Phelps  states  further  that — 

In  the  conversation  on  the  13th  August,  above  mentioned,  I  again 
pressed  for  the  completion  of  the  convention,  as  the  extermination  of 
the  seals  by  Canadian  vessels  was  understood  to  be  rapidly  proceeding. 
His  lordship  in  reply  did  not  question  the  propriety  or  importance  of 
taking  measures  to  prevent  the  wanton  destruction  of  so  valuable  an 
industry,  in  which,  he  remarked,  England  had  a  large  interest  of  its 
own,  but  said  that  tlie  Canadian  Government  objected  to  any  such 
restri(!tions,  and  that  until  its  consent  could  be  obtained.  Her  Majes- 
ty's Governmeut  was  not  willing  to  enter  into  the  convention,  that 
time  would  be  requisite  to  bring  this  about,  and  tlmt  meanwhile  the 
convention  must  wait. 

It  is  very  apparent  to  me  [says  Mr.  PhelpsJ  that  the  British  Govern- 
ment will  not  execute  the  desired  conventi<m  without  the  concurrence 
of  Canada.  And  it  is  equally  apparent  that  the  concurrence  of  Canada 
in  any  such  arr;'ngement  is  not  to  be  reasonably  expected.  Certainly 
Canadian  vessels  are  making  prolit  or.t  of  the  destruction  of  the  seal 
in  the  breeding  season  in  the  waters  in  <iuestion,  inhunum  and  waste- 
ful as  it  is.  Tliat  it  leads  to  the  speedy  extermination  of  the  animal  is 
no  loss  to  Canada,  because  no  part  of  these  seal  fisheries  belong  to  that 
country,  and  the  only  ])r()nt  open  to  it,  in  connection  with  then),  is  by 
destroying  the  seal  in  Hie  open  .sea  during  the  breeding  time,  although 
many  of  tlui  animals  killed  in  that  way  are  lost,  and  those  saved  are 
worth  much  less  than  when  killed  at  the  proper  time. 

Under  these  circumstances  the  Government  of  the  United  States 
must,  in  my  opinion,  either  submit  to  have  tiiese  valuable  tisheries 
destroyed  or  nnist  take  measures  to  i)revent  their  destruction  by 
capturing  the  vessels  employed  in  it.  Between  these  alternatives  it 
does  not  appear  to  me  there  should  be  the  slightest  hesitation. 

It  was  thus  that  Canada  was  permitted  to  intervene,  as  a  Qovern- 

ment,  to  prosecute  the  right  of  Canadians  who  were  British  Bubjects, 


88 


ami  not  Canadian  subjects  in  the  international  sense,  and  in  a  matter 
as  to  wliicJi  his  h)nlshii)  reinarivcd  that  "England  had  a  largo 
interest  of  its  own,"  and  that  "until  its  (Canada's)  consent  could  be 
obtained  Her  Majesty's  Governn»ent  was  not  willing  to  enter  intx)  the 
eonvention." 

Tiie  propriety  of  that  intervention  by  Canada  was  a  matter  between 
those  Governments,  l)ut  the  enibanassnient  and  dannige  to  the  United 
Slates  WHS  increased  by  the  fa<*t  that  Great  Britain  thus  changed  her 
attitude  on  these  (juestions  without  chiinging  hey  r  iocs  of  irhat  icns  right 
in  the  matter,  as  to  the  jirescrvation  of  the  fur  seals.  Tiie  United  States 
Avere  thus  forced  to  abandon  further  efforts  at  coiiperation  with  Great 
IJritain  and  to  vindicate  their  separate  rights,  and  the  diplomatic  dis- 
cussion was  then  directed  to  the  property  I'ights  of  the  United  States 
in  the  fur  seals  and  the  "  lisheries,"and  tt)  their  rights  of  jurisdiction  to 
protect  and  preserve  them. 

It  was  in  themannerl  have  just  stated  and  under  these  circumstances, 
that  the  United  States  was  forced  to  yield  her  efforts  for  a  joint  arrange- 
ment with  Great  Britain  for  the  protection  of  the  fur  seals  in  Bering 
Sea.,  and  to  fall  back  ujxm  her  rights  as  owner  of  the  seals,  and  of  the 
imlustry  based  upon  the  security  of  these  animals  against  indiscrimi- 
nate shiughter. 

Tlie  situation  was  emergent,  and  the  United  States  acted  upon  it  to 
save  tlie  seal  herd  and  to  protect  her  rights  ami  powers  of  government, 
"which  were  indispensable  to  that  high  duty,  in  that  remote  and  pecul- 
iar region.  The  separate  and  independent  rights  which  the  United 
States  was  thus  driven  to  assert,  were: 

First.  That  she  had  derived  from  Knssia,  with  the  acquiescence  of 
Great  Britain,  the  exclusive  jurisdiction  to  control  and  protect  the  fur 
seals  in  Bering  Sea. 

Tin's  claim  has  been  virtually  decided  by  theribunal,  adversely  to 
the  United  States,  and  1  will  not  now  discuss  it  further. 

Second.  It  was  dainu'd  by  the  United  Stntes  (lovernment  that  it  is 
the  owiuT  of  the  fur  seals  that  are  in  Bering  Sea  or  that  habitually 
resort  to  its  waters  and  islands. 

Third.  That  if  its  claim  of  owiiershipofthesealscannotbenuiintained 
it  has  a  right  of  protection  of  seal  life,  to  be  exerted,  as  far  as  may  be, 
under  its  separate  jxjwers  of  sovereignty,  and  if  these  are  inadequate 
lor  their  ])rotection  then  it  has  a  just  clnim  that  Great  Britain  will 
restrain  her  subjects,  in  conf4U'mity  with  ccuicurrent  regulations  which 


89 


1  a  matter 

I  a  large 
t  could  be 
it  into  tlie 

■r  between 
lio  United 
aiiged  her 
twasriijht 
ited  States 
kith  Great 
jinatic  dis- 
ited  States 
sdietiou  to 

II  instances, 
nt  arrange- 
in  IJering 
and  of  the 
indiscriini 

upon  it  to 

>verninent, 

and  pecul- 

io  United 

iescence  ot" 
(;t  the  Air 

Ivcrsely  to 

that  it  is 
habitually 

naintainod 
lis  inivy  be, 
undeciuate 
ritiiin  will 
ions  which 


this  tribunal  shall  determine  in  its  award,  from  acts  that  Jire  in  hostil- 
ity to  seal  life  and  destructive  to  it,  taken  as  a  whole. 

On  these  (luostions,  I  now  propose  to  state  my  opinion  as  an  arbitra- 
tor. I  will  discuss  this  nnitter  further  ia  connection  with  the  right  of 
pelagic  hunting  of  fur  seals,  which  is  theonly  huniiin  agency  tliat  wars 
upon  seal  life  in  the  waters  of  the  ocean,  find  is  the  right  ehiinu'd  by 
the  British  Government  as  being  free  and  unrestricted,  in  favor  of  her 
subjects. 

The  claim  of  protection  of  and  for  seal  life  set  up  by  the  TTnifed 
States  is,  in  its  most  enlnrged  sense,  sini])ly  a  question  of  jurisdiction  as 
to  which  Government  shall  exercise  the  power  to  protect  the  seal  lu'rds 
outside  the  territoriallimitsof  both  countries.  The  right  of  tlu^  United 
Stijtes  to  have  such  pr<>tection  is  not  more  real  or  necessniy  if  it  is 
held  to  be  the  owner  of  the  i)roperty,  tluin  it  is,  as  the  owner  of  an 
industry  which  can  not  exist  if  the  seals  are  destroyed. 

The  industry  on  the  islands,  as  it  is  conductisd  by  the  United  States, 
is,  in  every  sense,  legitimate;  it  is  useful  to  commerce!  and  to  other  great 
industries  in  other  countries;  it  is  humane  in  its  methods,  and  is  tlie 
only  ujcaus  by  which  seal  propagation  can  be  practiced  success liilly. 

It  is  the  only  method  that  is  in  accordance  with  the  avowed  purpose 
of  both  Governments,  exi)rcssed  in  this  treaty,  and  in  various  other 
solenni  utterances,  of  protecting  and  preserving  seal  life  in  the  North 
Pacific  Ocean.  But  above  all  this  the  industry  based  on  seal  life  is  the 
only  valuable  resource  of  living  for  the  people  on  the  islands  and  coasts 
of  Bering  Sea,  and  if  this  is  lost  they  nuist  perish,  if  they  remain  in 
their  native  country,  or  else  tliey  must  be:  fed  and  clothed  from  the 
Treasury  of  the  United  States.  The  preseivation  of  the  seals  is,  there- 
fore, a  right  and  duty  of  governnuMit  on  the  part  of  tlie  United  States, 
which  it  owes  to  ami  nnist  ex(u-cise  in  behalf  of  those  citizens  and 
can  not  abandon.  The  seal  industry  also  yields  a  revenue  ti>  the  United 
States  that  is  valuable  and  necessary  for  the  support  of  government 
in  that  inhospitable  region. 

If  that  country  can  enjoy  the  advantage  of  its  only  valuable  re 
source — its  only  ju'oduction  of  commensal  value — without  material  in- 
terference with  the  positive  rights  of  the  liritish  or  any  other  pcojde, 
it  is  the  duty  of  the  TTuited  States  to  protect  such  means  of  existence 
and  civilization  for  the  benefit  of  the  i)eo])l(»  there.  In  the  ellbrts  to 
do  this,  which  have  been  <'rowned  with  tbe  most  luuiorable  sui-cess.  the 
United  States  have  found  it  ne<jessary  as  a  measure  of  government, 


r 

hi 


"I 
I'' 

I' 


■ill     *\    i 


f  i 


90 

to  protect  the  seal  herd  and  to  indemnify  its  Treasury  by  levying  a  tax 
upon  the  pelts  of  the  seals  taken  under  their  laws  and  regnlatiouB. 

This  public;  and  governmental  necessity  and  right  is  not  deiied,  but 
if  it  was,  the  United  States  would  still  be  the  sole  and  sovereign  judge 
of  that  duty.  In  fact,  the  revenues  so  derived  are  not  sufficient  to  pay 
all  tlie  expenses  of  administration  in  the  perilous  and  costly  police  of  the 
islands  and  the  seas  around  them  for  the  protection  of  seal  life  and  the 
conduct  of  this  industry. 

If  we  turn  to  the  photographic  i)latos  produced  in  evidence,  those 

historians  that  can  not  use  words  to  abuse  tlie  truth,  we  see  at  a  glance 

what  it  must  have  cost  the  United  States  already  to  have  converted 

these  desolate  islaiuls  into  places  of  decent  abode,  and  those  wretched 

savages  into  self-repecting  people  worthy  of  a  place  and  a  name  among 

civilized  and  Christian    i)eoples.    The   United  States  can  not  aftbrd 

to  allow   these  pcoi)le  to  relapse  into  savage  barbarity.    It  can  not 

abandon  them  to  a  <5ruel  and  destructive  fate,  and  this  tribunal 
can  not  afford  to  search  for  son>e  reason  for  assisting  such  a  relapse, 

alone  in  legal  decisions  made  under  nuiuicipal  laws  in  England  or 
elsewhere  in  private  lawsuits  between  private  litigants  about  i)heas- 
ants  and  rooks  and  rabbits.  These  two  Governments  have  found  it 
necessary,  iu  order  to  secure  justice  and  i)eace  between  their  people  i.'id 
to  repress  a  slaughter  of  useful  animals,  which  is  wasteful,  destruc- 
tive, unnecessary,  and  inhuman,  to  remove  the  controversy  beyond  the 
reach  of  the  intluence  of  the  mere  cupidity  of  men  eager  for  private 
gain,  into  the  higiier  plane  of  a  contest  between  nations.  It  is  no  h»nger 
a  case  in  which  men  who  are  citizens  of  the  United  States  can  accuse 
tlieir  Government  of  a  mean  purpose  of  making  illicit  gainsfor  its  revenues 
by  a  tax  on  fur-seal  pelts,  or  of  aiding  a  monopoly  granted  to  favorites; 
or  in  which  renegade  citizens  can  be  allowed  to  abuse  the  laws  ot  the 
United  States  by  the  surreptiticms  use  of  the  ilag  of  Great  Britain. 

These  Governments  are  pledged  to  lir.d  a  way,  by  means  of  the  award 
the  tribunal  shall  make,  to  protect  and  preserve  these  seals,  and  they 
can  not  and  will  not  permit  them  again  to  beconu".  the  prey  of  private 
cupidity.  It  is  only  the  private  greed  for  gain  at  any  sacrifice  of  great 
public  interest  and  duties  that  calls  in  »iuestion  the  public  right  and 
duty  of  pi'otecting  the  seals  by  international  action.  To  dignify  this 
opposition  of  the  seekers  for  private  gain  into  a  business  that  rises  above 
the  duty  of  nations  towards  the  peace  and  prosperity  of  the  world,  the 
reckless  and  destructive  methods  of  the  pelagic  hunter  are  raised  to 


91 


vying  a  tax 
;nlatioii8. 

del  ied,  but 
Breign  judge 
Lcient  to  pay 
police  of  tl>''. 

life  and  the 

(leiice,  those 
c  at  a  glance 
v^e  converted 
ose  wretched 
name  among 
111  not  aftord 
.    It  can  not 
this  tribunal 
ch  a  relapse, 
England  or 
about  i)heas- 
lave  found  it 
lir  people  u'ld 
eful,  destruc- 
ly  beyond  the 
r  for  private 
tisnolonger 
s  can  accuse 
ir  its  revenues 
to  favorites; 
e  laws  ot  the 
Britain, 
of  the  award 
8,  and  they 
ey  of  private 
itice  of  great 
ic  right  and 
dignify  this 
it  rises  above 
le  world,  the 
ire  raised  to 


the  plane  of  the  honorable  and  useful  industries  of  mankind.  This  is 
called  ill  the  British  case  and  in  the  arguments  of  British  counsel  "the 
industry"  of  pelagic  hunting  or  fishing;  and  it  is  claimed  that  it  is 
legitimate  trade,  in  coinnctition  with  tiie  trade  and  industry  conducted 
on  the  I'ribilof  Islands  by  the  United  States.  An  industry  that 
destroys  and  exterminates  the  subject  to  wiiich  it  is  applied  is  not 
deserving  of  this  honorable  definition. 

But,  treating  it  as  a  just  and  honorable  industry,  will  Great  Britain, 
now  that  it  has  taken  up  the  duty  of  preserving  and  protecting  this 
fur  seal  industry  on  i)ublic  account,  publicly  license  and  conduct  fur- 
seal  hunting,  in  the  way  and  with  the  destructive  effect  that  it  is  being 
prosecuted  by  its  own  subjects,  and  by  citizens  of  the  United  States 
who  abuse  its  Hag  by  making  it  a  shelter  to  i)rotect  them  against 
criminal  responsibility  to  their  own  Government? 

Is  it  true  that  under  this  treaty,  which  leaves  this  tribunal  to  deal 
with  these  questions  as  matters  that  (5onceru  justice, peace,  and  comity 
between  nations,  and  not  as  mere  private  rights,  the  Government  of 
CJreat  Britain  claims  for  itself,  as  a  governiDent,  or  for  its  people,  the 
right  to  pursue  this  industry  in  the  present  destructive  and  cruel  way 
in  whichit  has  been  and  is  being  conducted? 

If  the  strict  legal  right  of  pelagic  sealing  attends  and  legitimates  this 
industry  in  all  waters  outside  actual  territorial  limits,  and  makes  it  law- 
ful to  surround  the  seal  islands  with  shi])s  and  to  kill  the  animals  as 
they  come  and  go  from  the  islands  to  the  oi>eii  sea,  does  Great  Britain, 
under  this  treaty,  claiiu  that  the  right  now  exists  in  this  unqualified 
extent,  in  favor  of  its  subjects,  or  that  it  comports  with  tiio  pledges  of 
this  treaty  that  the  seals  are  to  be  preserved  and  prote(;ted? 

Great  Britain  has  taken  the  right  to  pursue  this  industry  from  the 
hands  of  its  subjects,  on  the  gnninds  of  public  policy  and  of  duty  to 

the  United  States,  and  has  submitted  them  to  this  tribunal  for  decision. 
If  the  "industry,"  as  it  is  pursued,  is  legitimate  fishing,  and  if  it 

could  have  received  the  sanction  of  the  Biitish  Government,  this  seri- 
ous wrong  to  her  subjects  in  depriving  them  of  it  could  not  have  been 
done. 

It  is  said  by  counsel  of  (iieat  Britain  that,  in  the  case  supposed,  of  a 
cordon  of  sliii)s  drawn  up  around  tlu^  seal  islands,  wiylaying  the  seals 
in  the  breeding  season  as  tiiey  <'oMie  from  and  go  to  the  sea  for  food 
and  killing  them  indiscriminately,  that  such  an  act  would  be  malicious 
and  the  United  States  would  treat  it  as  a  canus  bdli^  within  the  right 
of  nations  under  the  international  law. 


r 


92 

The  right  to  give  such  an  interpretation  to  such  conduct  means  that 
the  industry  of  pelagic  huutiug,  like  all  other  pursuits,  however  legiti 
mate,  is  qualified  by  the  demands  of  justice  that  are  due  to  all  other 
nations.  The  internatioiuil  law  neithf  /  requires  nor  sanctions  a  resort 
to  war  for  the  protection  of  the  plainest  rights,  if  they  can  be  i)eace- 
fully  maintained  without  detriment  or  dishonor. 

Tills  tiibunal  can  not,  in  justice  to  itself,  adopt  the  suggestion  that  it 
must  leave  the  industry  of  pel.agic  sealing,  in  view  of  this  treaty  and 
its  great  purposes,  so  loosely  defined  and  so  free  in  its  privileges  and 
so  licensed  to  maraud  upon  the  rights  of  the  United  States,  that  an 
assemblage  of  sealing  vessels  in  Bering  Sea,  sufiicient  to  destroy  the  seal 
herd  in  one  or  more  seasons,  is  lawful.  If  it  is  malicious  it  is  admitted 
to  be  unlawful  and  that  in  such  case  the  only  remedy  is  war.  In  such 
case  the  United  States,  being  forced  to  judge  of  the  evil  and  to  provide 
Die  remedy,  would,  tis  any  court  of  justice  must  do,  impute  the  malice 
to  the  nature  and  consequences  of  the  act.  This  tribunal  is  authorized 
tx>  act  upon  the  same  presumi>tion  in  prohibiting  this  evil. 

Following  up  this  right  in  all  parts  of  the  Bering  Sea  and  in  the 
Pa(;ific  Ocean,  the  United  States  would  justly  impute  malice — a  pur 
pose  of  wrong-doing — to  all  acts  that  warred  upon  its  revenues,  in 
respect  to  fur-seals,  during  the  period  of  resort  to  the  islands.  This 
action  of  the  United  States  would  find  its  full  justification  in  the  doc- 
trines stated  by  counsel,  which  should  be  adopted  ii  the  award  in  this 
case.  If  it  would  be  right  to  resort  to  war  to  prevent  or  redress  such 
wrongs,  the  more  peaceful  remedy  can  not  be  contrary  to  the  law  ol 
imtions. 

If  we  follow  the  British  contention  as  to  the  rights  of  pelagic  sealers, 
and  refuse  to  put  any  restraints  upon  pelagic  sealing,  instead  of  mali 
ing  an  amicable  settlement  of  the  controversies  that  called  us  togethei 
we  would  leave  new  and  burning  questions  open  between  these  Gov 
ernments  to  be  settled  by  war.  It  is  not  to  bo  expected  that  the  United 
States,  if  left  by  this  tribunal  to  the  duty  of  defending  itself  against 
the  abuse  of  rights  accorded  to  pelagic,  hunters,  without  any  restric 
tions  being  imposed  upon  them,  will  fail  to  availitself  of  the  necessary 
means  of  doing  that  duty. 

I  now  turn  to  other  views  of  this  subject  which  I  think  are  made  nee 
essary  by  Avhat  has  occurred  in  this  case. 

The  unrestricted  right  of  i)elagic  sciiling  has  been  supported  by  tlu" 
assertion  that  it  is  the  only  way  in  wliich  a  monopoly  in  the  fur  seal 


» 


;t  means  that 
jwever  legiti 
lo  to  all  other 
tions  a  resort 
:;an  be  peace- 

;ostion  that  it 
is  treaty  and 
irivileges  ami 
tates,  that  an 
istroy  the  seal 
it  is  adniitteii 
war.  In  sueh 
md  to  provide 
lite  the  malice 
1  is  authorized 
[. 

sa  and  in  the 
nalice — a  pur 
J  revenues,  in 
islands.  This 
ou  in  the  doc- 
award  in  this 
redress  such 
to  the  law  ol 

Iclapic  sealorSj 
itead  of  njaU 
bd  us  togethej 
Qu  these  Gov 
latthe  United 
itself  against 
any  rcstric 
|the  necessary 

ire  made  nee 

>orted  by  the 
b  the  fur  seal 


93 

trade,  growing  out  of  the  ownership  of  the  seal  islands  by  the  United 
States,  can  be  counteracted. 

The  commercial  attitude  of  the  United  States  towards  the  supply  of 
the  markets  of  the  world  with  the  pelts  of  the  fur- seal,  is  the  same 
that  all  countries  hold  in  respect  of  any  valuable  comnutdity  that  is  a 
pecidiar  product  of  the  soil  or  climate.  The  incentive  of  commercial 
interchange,  the  necessities  of  the  consumers,  and  the  laws  of  supply 
and  demand  arc  simply  left  to  regulate  the  outflow  of  such  productions 
into  the  open  channels  of  commerce. 

If  the  United  States,  alone,  i)roduced  fur  seals,  the  Constitution  of 
that  Government,  which  prohibits  all  duties  ou  exports,  affords  a 
guaranty  that  no  other  nation  has  given  against  the  possibility  of  a 
inonoi)oly  in  the  pelts  of  that  animal. 

Hut  Russia  and  Japan  yet  remain  as  active  competitors  in  this  and 
other  branches  of  the  fur  trade,  and  their  care  of  this  industry  and  the 
distance  of  their  sealing  islands  from  the  coasts  of  Canada  and  of  the 
United  States  and  the  difficulties  of  navigation  in  their  seas  are  likely 
to  preserve  a  large  proportion  of  their  seal  herds  from  destruction  for 
numy  years  to  come.  Many  peltries  will  be  thus  supplied  to  commerce, 
in  competition  with  those  that  are  taken  by  the  United  States. 

If  the  regulations  of  seal  hunting,  that  are  found  necessary  by  this 
tribunal  to  preserve  the  species,  are  adopted  by  those  Powers  along 
whose  coasts  and  islands  the  fur-seal  formerly  abounded,  the  number 
of  these  animals  will  again  increase  in  the  southern  hemisphere  until 
the  world  will  have,  again,  an  abundant  supply. 

The  course  of  the  United  States  in  reference  to  the  care  and  nurture 
of  seal  life  is  directly  opposed  to  the  engrossment  of  this  product  in 
the  way  of  monopoly.  On  the  contrary,  that  Government  has  shown 
its  anxiety  to  preserve  and  increase  the  stock  by  its  regulation  of  kill- 
ing on  land,  by  forbearing,  during  three  seasons,  from  taking  seals  in 
excess  of  7,500  which  were  reserved  for  the  support  of  the  natives,  and 
by  reducing  the  number  of  seals  that  tlie  lessees  were  entitled  to  kill 
from  100,000  to  00,000  per  annum,  at  the  x)0ssible  risk  of  pecuniary  lia- 
bility to  the  lessees. 

Besides  this,  the  expense  of  agents  and  superintendents  of  the  islands 
and  of  guarding  them  from  the  raids  of  poachers,  is  very  considerable. 

It  is  difficult  to  conceive  that  a  government  could  have  done  more,  or 
could  have  act€d  in  better  faith  towards  other  powers,  in  a  matter  where 
there  is  an  acknowledged  public  trust  aiisiug  from  its  possession  of  the 
seal  islands. 


ii 


i 


i'S 


w^'  >i 


94 

Tariff  duties  that  prohibit  or  stronjjly  toud  to  the  oxcliision  of  im- 
ports, 80  as  to  benefit  tlie  special  industries  or  pr()ilu(!lions  of  a  country, 
are  in  the  nature  of  nionopnlies  of  tiie  home  markets  and  are  {••enerally 
enforced  by  cnliKhteiu'd  {joveriiUKMits.  And  tliey  do  not  stop  to  inquire 
as  to  the  injuries  that  sucli  laws  may  entail  upon  other  countries. 

Tobacco  is  not  extensively  produced  in  Europe,  and  several  of  the 
European  gfovernments  purchase  the  stock,  chieliy  irom  America,  and 
manufacture  and  sell  it  on  jjoveriinu>nt  account,  aiul  lix  the  pri«'cs  that 
(consumers,  in  those  countries,  nuist  pay  for  the  manufac^tured  articl'\ 
This  monopoly  works  an  injury  to  nianufa(!turcrs  in  America,  but  no 
one  has  thought  to  nuike  complaint  apiinst  the  governments  that  create 
it,  in  respect  to  an  American  production,  in  this  important  nuitter 
the  Congress  of  the  United  States  has  no  power  to  j)rotect  the  pro- 
dui^ers  of  tobacco  or  the  manufacturers  by  an  export  duty  on  toba(?co. 

Many  other  instances  of  monopoly  of  trade  could  be  cited  to  show 
that  it  is  essentially  a  power  of  government  which  any  nsition  may 
rightfidly  employ  to  provide  for  its  revenues  and  the  welfare  of  its 
people. 

There  is,  really,  no  conceivable  case  or  condition  connected  with  the 
industry  of  the  tur-seal  fisheries  in  which  the  United  States  could 
monopolize  this  trade,  exc3pt  by  destroying,  as  rapidly  as  possi- 
ble, the  seals  on  the  islands.  When  a  government  finds  it  necessary 
to  protect  these  animals  against  its  own  j)eople,  as  well  as  against 
those  of  other  countries,  by  assuming  to  itself  their  exclusive  owner- 
ship, a  monopoly  is  the  invitable  result  and  it  is  indispensable  to  the 
safety  of  the  property.  This  sort  of  moiu^poly  is  a  part  of  the  duty  of 
governmt  nt  and  of  its  legitimate  powers. 

It  is  both  the  right  and  the  duty  of  the  United  States  to  assume  and 
to  exert  ownership  over  these  animals,  in  order  to  extend  to  them 
the  protection  that  is  due  to  useful  do  lesticated  animals.  The  legis- 
lation of  nearly  every  government  upon  whose  shores  or  islands  fur 
seals  resort  habitually  for  breeding  purposes  assumes  over  them  a  gov- 
erinnent  control  for  their  y»rotectiou  and  the  right  to  raise  revenue  out 
of  them,  which  is  based  on  the  right  of  appropriating  them  to  govern- 
mental uses  and  purposes,  so  that  all  those  governments  are  in  that 
sense,  monopolists.  Such  control  can  not  be  les°  than  an  assertion 
of  a  right  of  property,  for  it  prohibits  all  persons  from  asserting  a 
claim  to  them  on  private  account,  and  it  makes  them  a  source  of  revenue. 
These  may  be  justly  called  laws  for  the  domestication  of  the  fur  seals— 


« 


lusion  of  im- 
of  Ji  coniitry, 
ire  <;<>iieriilly 
top  toiiHiuire 
•uutrics. 
several  of  the 
Ainericii,  and 
he  prices  that 
•tared  virticl'^. 
leriea,  but  no 
its  that  create 
utaiit  matter 
)tect  the  pro- 
ty  on  tobacK'o. 
jited  to  show 
y  nation  may 
welfare  of  its 

pcted  with  the 
States  could 
idly  as  iiossi- 
s  it  necessary 
ell  as  against 
elusive  owner- 
Mi  sable  to  the 
of  the  duty  of 

0  assunie  and 
end  to  them 
1.    The  legis- 
or  islands  fur 
ir  them  a  gov- 
e  revenue  out 
cm  to  govern- 
s  are  in  that 
an  assertion 
n  asserting  a 
ce  of  revenue. 
;he  fur  seals— 


95 

hiws  for  converting  tiiem  into  property  sis  domestics  animals.  They  differ 
from  game  laws,  whidi  protect  wild  animals  in  ordtM-  to  sec-ure  a  greater 
Rupi»ly  for  the  common  use. 

All  this  legislative  tendency  indicates,  in  the  plaiiu'st  manner,  aeon- 
census  of  oi)inion  and  a  common  movement  in  tiu>  direction  of  classify- 
ing fur  seals  as  domestic  animals  in  respect  to  tln^ir  protecti(»n  by  posi- 
tive laws.  Why  this  universal  sentimeut  shouhl  only  Ix^  resisted  by 
Canada  for  purpose  of  assisting  iier  people  in  making  selfish  gain,  is 
an  inquiry  that  only  gives  ])oint  to  tlu^  suggestion  that  the  interna- 
tional law  should  conform  to  the  general  numicipal  law  on  this  sul)iect. 

The  careful  examinations  and  reports  of  nniny  eminent  naturalists, 
sui)ported  by  a  general  and  distressing  experience  as  to  tlie  extinction 
of  the  fur  seals,  hrst  in  the  southern  hemisphere  and  now  in  the  northern, 
has  set  the  local  lawmakers  to  work  in  contriving  statutes  to  stop  these 
destructive  practices  and  to  restore  the  herds  to  their  former  status. 
All  these  laws  are  based  on  the  fact  that  (/overnmcnt  control  of  the  seals 
is  ncccHsHry  for  their  preHcrvation,  and  that  the  aeals  are  entitled  to  the 
same  protection  of  the  law,  suited  to  their  nature,  as  other  domestic  animals. 

As  this  subject  is  now  presented  for  the  first  time  to  an  international 
tribuiuil,  and  in  a  controversy  between  two  great  powers,  and  as  the 
origin  of  the  questions  so  presented  is  of  a  very  recent  date,  and  as  no 
direct  precedent  or  discussion  exists  to  guide  or  control  the  judgment 
of  this  tribunal,  a  proper  occasion  is  presented  for  declaring  that  these 
animals  should  have  the  same  classitication  un<ler  the  international 
law  that  they  have  under  the  municipal  laws  of  all  countries  that  fur- 
nish a  resort  for  the  fur  seals  during  their  period  of  compulsory  living 
on  land.  Such  a  declai'ation  would  not  create  a  new  rule  of  inter- 
national law;  it  would  only  ai)p]y  the  rules  that  may  now  be  termed 
universal  law,  in  municipal  legislation,  to  that  area  of  the  earth's  sur- 
face in  which  there  is  no  supreme  law,  because  there  is  equal  sov- 
ereignty in  all  nations,  and  would  include  in  those  rules  the  preserva- 
tion on  the  high  seas  of  animals  that  are  so  serviceable  to  man  as  to 
deserve  to  be  classed  as  domestic  animals.  All  useful  animals  are  sub- 
jected to  domestication  by  the  divine  decree  that  gave  to  man  the 
dominion  over  the  beasts  of  the  field  and  the  birds  of  the  air. 

Laws  for  the  protection  of  animals  are  elaborately  provided  and  are 
made  cardinal  features  of  all  civil  codes  and  of  the  moral  code  of  the 
Pentateuch.  This  benign  system  has  expanded  from  age  to  age  so  as 
to  admit  within  the  circle  of  domesticated  animals,  that  are  protected 


;) 


96 


by  laws,  all  that  liavo  bocii  fonrid  of  ooiniiioii  iiso  fur  food  or  raiineiit, 
aiitl  are,  by  their  habits,  capable  of  identification  with  refereiH'e  to  sep- 
arate ownership,  sucli  a8  siiell  lisli  yiehlin^  pearls,  oysters,  clams, 
corals,  sponges,  etc.,  and  a  large  number  of  auiiuals  that  were  not  bo 
classed  until  within  a  recent  jieriod. 

Tiie  tendency  has  been  uniform  to  enlarge  the  scope  of  the  laws  so 
as  to  include  all  animals  within  the  dassitication  of  domestic  animals,  as 
occasion  has  presented,  and  no  aninnils  have  been  permitted  to  be  rele- 
gated to  a  classification  as  wild  animals,  that  have  been  once  included 
in  the  protection  extended  by  the  laws  to  domestic  animals.  Any 
oMior  rule  of  action  would  deny  to  all  new  conditions  that  are  v.alu- 
able,  the  protection  of  the  principles  of  international  law. 

The  domestication  of  animals  by  general  usage,  or  by  law,  attaches 
to  them  the  presumption  that  they  are  exempt  from  slaughter  at  the 
will  of  anyone  who  may  choose  to  kill  them.  Within  the  field  of  oper- 
ation of  such  laws,  such  animals  are  i)rotected  as  all  domestic  animals 
are  i»iotected.  Outside  that  jurisdiction,  they  are  protected  by  comity, 
or  by  the  application  of  principles  of  international  law,  derived  from 
nuinicii)al  laws,  or  else  from  the  sentiment  or  the  necessity  that  lies 
at  the  foundation  of  municipal  laws. 

Those  princii>les  are  justly  founded  on  the  general  usefulness  of  the 
animals  to  mankind,  and  the  consequent  necessity  for  giving  them  pro- 
tection. The  international  law  should  attach  to  them  the  same  pre- 
sumption of  domesticity  that  is  attached  to  them  in  such  cases  by  the 
municipal  law. 

In  matters  like  those  submitted  to  us  the  opportunity  occurs  for  a 
formal  declaration,  which,  by  treaty  agreement,  is  made  obligatory  upon 
two  gruat  powers,  of  the  relation  that  these  animals  should  bear  to  the 
question  of  their  preservation,  in  the  international  law.  That  relation 
is  uniform  and  unbroken,  excei)t  in  the  laws  and  usages  of  Canada,  in 
all  the  legislation  of  all  the  municipalities  that  have  any  interest  in  the 
subject.  It  is  nothing  less,  in  effect,  than  a  declaration  of  those  legis- 
latures that  fur  seals,  by  reason  of  their  value,  their  helplessness  to  resist 
or  escape  from  the  power  of  man  during  a  large  part  of  every  sjjring, 
summer  and  autumn,  their  docility  and  the  absolute  necessity  of  giving 
them  that  protection  by  positive  law  that  nature  has  denied  to  them, 
should  be  classed  and  are  entitled  to  be  classed  in  favorem  vitcc,  as 
domesticated  animals. 

I  can  not  understand  how  it  can  be  possible,  iu  view  of  the  facts,  that 


[1  or  raiment, 
forejico  to  sei>- 
^sters,  claiiiH, 
it  wore  not  so 

)f  the  laws  so 
tic  animals,  as 
;ted  to  be  rele- 
once  incUulfd 
uimals.  Any 
that  are  valu- 

V. 

law,  attaches 
lighter  at  the 
e  field  of  oper- 
nestic  animals 
ted  by  comity, 
,  derived  from 
issity  that  lies 

^fulness  of  the 
ving  them  pro- 
;he  same  pre- 
[  cases  by  the 

;y  occurs  for  a 
bligatory  upon 
uld  bear  to  the 
That  relation 
of  Canada,  in 
interest  in  the 
of  those  legis- 
ssness  to  resist 
f  every  sirring, 
jssity  of  giving 
enied  to  them, 
ivorem  vitw,  as 

ftlie  facts,  that 


97 

this  Tribiniiil  slionld  dochin.  fli.^  fj.  .. 

•Nan   they  l,„vo  a«„i„»t  .,„.  ,<„,,.,  , „     i,,   t     '  "'" 

11495  M 7 


I  ■ 


1 


REGULATIONS. 


If 


ai 


TIIK  TUTHTTNAT.,  n\VIN(i  DKCIDKI)    TIIK  OTHER  QUESTIONS  STTBMITTED 
TO  TUEM  IINDKU  I'lIK  TK'HATY,  IMfOCKIODKI)  TO  THE  CONSIDERATION 

or  THE  suj{.rE(rr  oe  proper  recjui-ations  fob  the  protection 

AND  PRESERVATION  OP  PUR  SEALS  IN   THE  NUUTll   PACIEIO  OCEAN, 
INCLUDING  UERINd  SEA. 

Oil  this  topic.  Mr.  Senator  Morjjan  delivered  the  foUowiiif;  opinion: 
I  hiivo  heretofore  insisted  that  wlieii  concurrent  re^iuhitions  are 
adoi)ted  they  will  be  tlie  result  of  the  power  of  tlie  Tribunal  to  agree 
upon  and  stipulate  a  feature  of  tlie  treaty,  in  resi)eet  of  pelafiic,  hunt- 
injj:  of  fur-seals,  as  between  tlio  two  Governments;  as  much  so,  as  if 
tlie  revaluations  had  been  formally  a}>reed  upon  and  written  into  tho 
body  of  tho  convention  under  which  we  are  acting.  I  understand  that 
this  point  is  agreed  to  on  the  part  of  all  the  Arbitrators,  and  I  so 
state  it. 

(2)  Tlio  Arbitrat(M's,  in  the  exercise  of  these  powers,  must  act  as 
impartial  negotiators,  as  tliey  hold  their  authoiity  from  both  the  High 
Contracting  J*aitics,  uiuler  the  treaty;  and,  their  awar<l  being  tinal,  it 
is  .sanctioned  and  sustained,  if  it  is  within  the  purvi(!W  of  their  author- 
ity, by  tiio  sovereign  powers  of  botli  Govcnunents,  pledged  in  tiio 
treaty  in  advam-e  of  the  decision  of  tin  Arbitrators.  1  also  under- 
stand that  this  point  is  not  disputed. 

(3)  The  regulations  we  shall  adopt  are  in  iio  sense  judicial  decisions, 

though  they  are  based  upon  principles  of  law  declared  by  the  Tribunal, 

nor  is  the  power,  or  duty,  of  nuiking  them,  so  as  to  ])rotectand  preserve 

tiu^  fur-seals,  restrained  or  controlled  so  as  to  conform  to  tho  personal 

interests  of  pelagic  hunters  or  the  national  interests  of  the  United 

States.    Tho  twoGoveriuuents  have  removed  sucii  considerations  from 

tho  scope  of  our  duties  by  assuming  absolute  coutrol  of  the  entire 

subject,  which  was  found  necessary  to  bo  doue  iu  order  to  properly 

protect  and  preserve  the  fur-seals  in  the  interests  of  commerce  and 

huuuinity.    In  like  manner  they  have  excluded  from  oui"  consideration, 
98 


99 


TBMITTED 
DKKATION 
OTECTION 
10   OCEAN, 


opinion : 
liitioiis  are 
\\  to  agree 
lajiic  linnt- 
•li  80,  as  if 
\ii\  into  tlio 
rtstand  that 
s,  and  I  so 

[Mist  act  as 
h  tlic  High 
iiy  linal,  it 
jeir  autlior- 
sioil  in  tlie 
lalso  uuder- 

ll  decisions, 
cTiibunal, 
lid  preserve 
lie  i)ersonal 
Itlic  United 
lations  from 

the  entire 
bo  properly 
limerce  and 

isideration, 


nccordinfj  to  the  de<Msion  of  tlic  'i'rilniuiil,  liie  <|iicsfloii  of  ;;ain  or 
advantajje  to  tlie  UiiiJed  States,  as  a  (lovcriiiiK'iii,  usiilliii;;  iVniii  llm 
preservation  of  seal  life. 

Tiio  modm  rirrndi,  estahlislied  f(»r  three  coiiscnilive  scalinj;  seasons 
toolv  tlie  highest  possiMc,  governinental  authority  over  the  tin  seals  in 


\k 


ill 


)hil)ited  all   pel; 


>riiig  nea,  and  (luring  itiost*  .seasons  pioiiihited  all  peia;;ie  .  eaiin;;  in 
those  \vr*^ers.  This  is  a  virtual  declaration  that  liir  seals,  wliile  swiin- 
iiiiiig  IVeeiy  in  the  ocoan,  are  capable  of  being  treated  as  property  and 
are  subject  to  the  vniv,  of  t\w,  two  CJovermiients. 

The  last  of  these  agreements  is  iiicoii)oiated  with  and  made  a  part 
of  the  treaty  of  February  L".l,  JStL'. 

(4)  The  true  altitude  of  the  (|iiestioii  we  are  now  to  consider  is 
simply  this,  to  use  tin!  language  of  the  treaty:  "  TIk;  arbitrators  shall 
then  diitermine  what  concurrent  regulations  outside  tlu^  Jurisdictional 
limits  of  the  respective  goveriiiiK'iits  are  necessary,  and  ()ver  what 
wat«!rs  such  regulations  .-hoiild  extend,"  -'for  the  proper  protection  and 
preservation  of  the  fur-seals  in  or  habitually  resoitiny;  to  the  liering 
Sea." 

It  is  not  possible  that  the  power  to  determine  regulations  to  tiperate 
outside  the  Jurisdi<'tioii  of  the  twoCioveriiiiients,  which  can  only  include 
pelagic  sealing  in   the   waters  of  the  Pacific.  Oeean   and     Bering  Sea 
outside  the  territorial  limits,  <'aii  b(!  so  si  retched,  without  a  bold  usurpa 
tion,  as  to  include  the  killing  of  seals  on  the  land. 

It  is  (piite  as  iiii|)ossible  to  supi«tse  that  eitlier  gMveniment  intended 
tliat  by  concurrent  regulations  this  Tribunal  could  provide  laws  for 
either  (loveriiment  that  should  operatt^as  laws  within  the  actual  bound- 
aries of  the  other. 

When  the  power  is  given  only  to  (Icterniiiu!  ''over  what  iraters  such 
regulati(Mis  should  extend,"  it  is  not  possil)le  to  conceive  that  the  Tri- 
bunal has  the  power  to  determine  over  what  lands  or  islands  they 
shall  extend.  This  power  is  so  clearly  withheld  from  this  Trilaiiial  by 
the  treaty  that  its  exercise  would  be  ultra  circn,  in  any  form  or  for  any 
conceivable  purpose. 

So  that  we  have  in  the  body  of  this  treaty  the  statement  and  actmd 
enforcement  of  the  power  of  the  British  (iovernmeiit  to  dismiss  from 
consideration  the  personal  rights  of  its  subjects,  under  international 
law,  in  respect  to  pelagic  hunting,  and  the  assumption  by  that  CT(»vern- 
ment  of  supreme  and  absolute  control  over  them  and  their  rights.  All 
this  was  done  for  the  purpose  of  making  the  mutter  of  concurrent  wg- 


I 

I 


( 

it 

ill 


I 

I 


100 


11 


Illations  a  <]uostion  bctwoen  tlic  two  (lovoriiiiionts,  to  be  controlled  by 
the,  mutual  intcrnntional  jxilioij  of  prottctiiKj  and  preserving  the  Alatikan 
seals;  as  to  ivhich  purpose  hoih  Gorcrnmcnts  arc  in  accord.  They  agree 
as  to  the  national  duty  of  both  (iovei-nuKMits  to  ])rotect  and  preserve 
those  fur-sciils,  and  have  only  disagreed  as  to  the  rightful  aud  best 
method  of  executing  this  duty. 

(5)  There  is  no  mistaking  the  exaet  nature  and  extent  of  the  power 
conferred  on  this  Tribunal.  It  is  simply  the  power  to  determine  eon- 
current  rcgu!ati(uis  for  the  ]troper  protection  and  preservation  of  the 
fur-seals  in  or  habitually  resorting  to  Bering  Sea,  and  to  designate 
tiie  waters  that  should  be  in(;luded  in  such  regulations. 

If  this  Tril)unal  bases  its  award  upon  the  effect  that  such  regulations 
are  to  have  on  the  rights  or  profits  of  pelagic  sealers,  they  rebuke  both 
(iovernmciitsforhavingassumed  the  whole  responsibility  of  that  snbject, 
and  for  having  retired  from  view  the  private  rights  of  their  citizens 
under  the  international  law,  and  for  having  subjected  them  to  such 
mnni<'ipal  laws  of  the  ivspective  Governments,  to  be  enacted  in  con- 
fornnty  with  the  awari^,  as  shall  accord  with  the  avowed  public  policy 
of  those  Governments  to  preserve  and  protect  the  fur-seals. 

These  Governments  have  not  invited  us  to  decide  how  far  this 
policy,  mutually  agreed  to  and  declared  in  the  most  unequivocal  terms, 
shall  be  obstructed  by  our  elforts  to  take  care  of  the  interests  of  their 
citizens  vMigiiged  in  pelagic  sealing.  They  have  assumed  that  duty 
ami  will  doul)tIess  respond  to  it. 

Uoth  Governments  would  rejoice  if  the  preservation  and  protection 
of  the  seals  in  (luesticni  would  ad?nit  of  the  greatest  extent  of  peliigic 
hunting  by  tlieir  citizens  consistent  witii  the  prudent  and  humane 
treatment  of  these  usel'ul  animals.  But  they  carefully  consideieil  that 
(inestion  and  ap|)ointed  a  joint  Gonnnission  to  nnike  examination  into 
all  its  bearings.  That  Gommission  made  a  Joint  report  before  the 
treaty,  signt'd  I'Vbriiary  HI),  1S1>2,  had  be(Mi  latitied  by  either  Govern- 
ment, in  which  they  s;iy:  "5.  We  are  in  tlunough  agreement  that,  for 
industrial  as  well  as  for  otlier  obview  i  reasons,  it  is  ..icund)ent  n[»on  all 
nations,  and  ])artieularly  upon  thowe  having  direct  conuuercial  int(>rests 
in  fur-seals,  to  provide  for  their  i)rotection  and  iireservation;"  and 
further,  they  declare  that — "  7.  We  fiml  that,  since  the  Alaskan  i)ur- 
chase,  a  marked  diminution  in  the  number  of  seals  on,  and  habituallyr 
resorting  to,  the  Pribilof  Islands  has  taken  place;  that  it  has  been 
cumulative  in  ed'ect,  and  that  it  is  the  result  of  excessive  killing  by  man." 


101 


'olled  by 
Ahifilcan 
ay  agree 
[U-eserve 
md  best 

le  power 
lino  <*ou- 
111  of  tbe 
iesignate 

^giilationa 
bukc  both 
at  subject, 
ir  citizens 
n  to  such 
c(l  in  eon- 
blic  policy 

\v  far  this 

ocal  terms, 

its  of  their 

that  duty 

protection 
of  pdiigic 
Ll  luiinaiie 
(h'red  tliat 
Illation  into 
Ibetbre  tlic 
ItT  Govern- 
Lt  that,  for 
Int  uv»on  aU 
intiMcsts 
Ition;"  and 
laskan  pur- 
I  habitually 
has  been 
Ig  by  man." 


These  two  Nations,  acting  on  this  report  and  upon  other  ascertained 
facts  of  the  gravest  character,  tool-  the  snhjcct  into  their  otcn  hands  a'^d 
provided  for  the  deternn"nation  of  concurrent  regulations  by  this  Tribu- 
nal, to  operate  outside  the  jurisdictional  liinits  of  the  two  Governments, 
on  the  water  and  not  on  the  land,  for  the  i)rotection  and  preservation 
of  the«c  fur-seals. 

Tlie  subject  of  regulating  the  seal  herds  on  land  was  not  mentioned 
between  the  (ioveriimeiits  in  their  negotiations,  nor  in  the  treaty; 
doubtless  for  the  rcas(<n  that  Great  lU-itain  saw  that  it  was  the  interest 
of  tiie  United  Stat<'s  to  protect  aiul  preserve  the  seals  and  to  promote 
their  increase,  and  had  no  cansc  then  or  since  to  doubt  the  good  faith 
of  the  United  States  in  the  use  of  every  uieans  that  would  contribute  to 
that  end. 

"Tlie  excessive  killing  by  man"  that  the  Gommissionprs  agreed  to 
re])oit  could  not  have  been  the  killing  by  the  United  States  on  the 
islands  of  St.  Paul  an«l  St.  George;  <>tlierwise,  that  fact  would  have  been 
mentioned  and  nuule  the  subject  of  negotiation. 

The  protection  and  preservati<ui  of  the  seals  against  excCvSsivo  kill- 
ing, is  the  killing  upon  the  waters  outside,  the  jui'isdi(-tional  limits  of 
botV  countries.  It  is  beyond  a  reasonal)le  doubt  that  it  was  pelagic 
killing  that  was  considered  by  the  United  States  and  Great  Britain 
as  being  so  destructive  to  seal  life  as  to  make  it  incumbent  upon  all 
nations  to  provide  for  their  protection  and  preservation,  and  was  especi- 
ally the  duty  of  these  two  powers.  To  do  this,  these  Governments 
agreed  with  each  other  to  place  this  quest-on  upon  the  high  and  just 
ground  of  international  duty,  disregarding  the  profit  that  might  a(;crue 
to  the  subjects  and  citizens  oi  both  countries  from  the  indiscriminate 
slaugliter  of  the  fur-seals,  ov  to  the  United  States  from  i)reserving  and 
increasing  the  number  of  fur-seals. 

(6)  This  Tribunal  is  to  make  regulations  that  apply  to  this  herd  in 
its 2>rcscntco7i(liiion,i\n(\  not  witlirefereiu'c  to  some  former  condition. 

The  most  cons])icuous  fact  in  the  present  situation,  and  the  danger- 
ous Ihct  of  the  inevitable  future,  is  this,  that  the  fur-seals  will  disap 
pear  ra^.i  l.y  if  the  pelagic  hunter  is  abletomakethatbusiness  profitable 
on  the  sea  and  to  make  it  unprofitable  on  the  Pribilof  Islands.  Either 
of  these  results  will  destroy  the  fur-seals  rapidly,  and  both  of  them  would 
malcc  the  destruction  sudden,  and  that  without  remedy.  And  if  one  resiclt 
ensues,  the  other  must  follow  speedily. 

This  treaty  also  requires  this  Tribunal  toconsidor  and  decide  concern- 


\ 


102 


.i 


•;  I 


::ii 


infftln>  ri^litsof  t1i('sn1»)octs  and  citizoiisof  eitlierconntry  aisrofjards  tlio 
taking  of  liir  seals  in  or  liabitiially  resorting  to  Boring  Sea.  Wlietlier 
tliis  question  lias  bi'en  (lecided  or  remains  to  be  decided  the  Tribunal 
lias  not  yet  come  to  any  resolution.  That  subject,  though  I  have 
<l('inanded  its  separate  cxainiuatictn  and  decision,  has  been  passed  over 
by  tlic  Tribunal,  but  in  citliei'  case  I  will  assume  that  their  rights 
must  be  equal  and  that  there  will  be  no  discrimination  between  the 
people  of  the  two  countries  as  to  such  rights. 

If  the  right  is  given  tlitMii  by  tliis  award  to  scour  the  North  Pacific 
Ocean  an<l  lieringSea  at  all  seasons  of  the  year,  with  all  descriptions  of 
lirearms  excejit  rilles,  and  with  such  number  of  vessels  as  may  be 
lempl(!d  into  the  business  byits  profits,  assisted  by  steamei'sto(!arryofl" 
the  catch  so  as  to  l«'ep  the  hunters  steadily  employed  in  killing  seals,  it 
will  not  be  possible  for  the  (congress  to  prevent  the  citizens  of  the 
Uiiited  States  from  sharing  in  the  raids  upon  the  seals  equally  with 
Jiritish  subjects.  I  mean  that  the  ix'ojdo  of  the  United  States  would 
withdraw  their  suii])ort,  as  they  should  do,  from  any  body  of  represeuta- 
tives  that  would  tolerate  such  an  injustice,  aud  all  seal  hunters  aud 
many  thoiisands  who  are  not,  would  rush  in  to  destroy  them  as  they 
did  in  ISC.S. 

We  can  not  expect  to  impose  upon  the  United  States  the  duty  of 
keeping  uj)  this  exjieiisivo  and  harassing  plan  that  it  now  maintains  in 
good  faith  and  ix'ilcct  honor  for  the  preservation  of  the  fur-seals  when 
we  condemn  the  seals  to  certain  destruction  in  the  face  of  the  avowed 
policy  of  both  countries  that  they  should  be  protected  and  preserved. 

We  can  not  exjiect  the  United  States  to  nuiintaiii  its  prohibition  of 
])elagi(!  sealing  in  IJering  Sea  as  to  its  own  citizens  when  we  enjoin 
it  upon  that  Government,  as  a  moral  duty  and  a  treaty  obligation,  to 
rejH'al  her  laws  as  to  restrictions  ujion  British  subjects  iu  that  sea. 

This  is  what  (lie  United  Stiiles  must  do,  under  concurrent  regula- 
tions framed  upon  the  plan  of  Sir  -lohn  Tliomi)son,  or  else  it  nuist  vio- 
late the  spirit  of  the  treaty,  if  not  its  letter,  as  it  is  to  be  declared  in 
such  an  award,  because  of  llie  disadvantage  to  its  own  peo])le.  We 
can  not  thus  condemn  the  i»olicy  of  the  United  States  in  its  faithful 
«'lll'orts  to  jneserve  seal  life,  and  exi)ect  that  Government  to  maintain 
its  rigorous  laws  against  its  own  citizens. 

If  we  extend  an  invitation  to  other  nations  to  enjoy  equally  witl 
(Jreat  iiritain  and  the  United  Statt^s  tlui  looting  of  the  si'.al  ''ord  in 
the  North  Pacific  and  in  Bevin/,  Sea,  we  pledge  the  honor  o;  these 


Whether 

Tribunal 
r\i  I  have 
iissod  over 
leir  risi'hts 
twcen  till' 

•th  Pacific 
■riptious  of 
as  may  be 
to  cany  ofl' 
inp;  seals,  it 
ens  of  tlie 
lually  with 
ates  would 
i-epreseuta- 
unters  and 
em  as  they 

the  duty  of 
laintaius  in 
seals  when 
lie  avowed 
preserved. 
)liil)ition  of 
we  enjoin 
lijiutiou,  to 
I  at  sea. 
Mit  rejiula- 
t  must  vio- 
doclarod  in 
oi)le.    We 
its  faithful 
o  uiaiutain 

luallv  wit! 
[al  ''erd  in 
)Y  01  these 


t 


103 

(Tovermnonts  that  tlioy  will  sustain  the  rifjhts  of  all  nations,  both  in  n 
moral  and  uatioiiul  sense,  in  like  inv^isions  of  the  herds  of  Russia  and 
Japan. 

The  flap;  of  the  most  insijjnificant  power  in  the  world  will  have  the 
]»ledse,  through  sudi  an  award,  of  perfect  immunity  and  protection 
while  raidinj;- the  North  Pacilic  Ocean  and  lieriny- Sea  with  all  iinide- 
nicnts  of  d«^sfni(ii(tn,  not  excepting'  any,  and  in  such  number  of  ves- 
sels and  of  such  t<)nna<;e  and  description  as  they  choose,  not  exclndinfi," 
steamers,  and  witliont  haviiif;'  a  license  or  a  distinctive  flag'. 

A  recent  event  has  demonstrated  the  fact,  if  it  needed  any  demon- 
stratiiMi  (as  it  does  not),  that  the  little  kiiifidoin  of  Hawaii  will,  throujih 
th<^  help  of  renegades  ot  the  United  .States  and  Canada,  grow  rich  in 
renting  Ikm-  tlag  to  them  in  order  to  tak(^  advantage  of  the  scheme 
;!iesented  luuc  by  (Ireat  Ibitain  as  her  lu'oject  of  regulations.  Why 
•lese  two  (lovennnents  should  thus  create  such  a  destructive  fatality 
to  seal  life  through  the  award  of  this  Tribunal  wliihi  professing  the  wish 
and  pur|)ose  of  i)rotccting  it  is  quite  beyond  my  ability  to  comprehend. 

The  regulations  submitted  by  the  respective  Governments  for  the 
consideration  of  this  Tribunal  must  bo  regardiMl  as  their  official  state- 
ments of  the  basis  and  plan  of  settleinent  ]»roposedby  each,  and  notas 
the  ultimatnin  of  (lach  Government,  between  which  we  are  to  choose  by 
accei)ting  the  one  and  rejecting  the  other.  And,  as  no  jdan  or  foriuuli- 
tion  of  regnlaticnis  is  stated  in  the  treaty  or  alluded  to,  this  subject  is  left 
to  tht  judgment  of  this  Tribunal,  whiidi  is  at  liberty  to  discard  both 
scheme  ;  m*  to  adoi)t  regnlations  that  neither  Government  has  .sug- 
gestci  I':',  only  limitations  on  the  power  of  the  Tribunal  in  this 
r<'gi  (i  is.  i'lat  the  regnlations  shall  be  coiuairrent  and,  therefore, 
liuifonn  ..  <  to  '>otli  Governments,  that  they  shall  relate  to  waters 
that  are  (iii.-ale  the  jurisdictional  limits  of  either  (Government,  and 
that  they  shall  be  "necessary  *  *  *  for  the  proper  protection  and 
preservation  of  the  fur-seal  in  or  habitually  resorting  to  IJehring  Sea." 

The  treaty  also  furnishes  a  guide  as  to  the  general  nature  of  the  reg- 
ulations, that  they  should  be  such  as  to  claim,  for  their  international 
sup  ortjlhe  adhesion  of  other  powers  to  such  regulations. 

'.t  u'ilbc  obseivi'd  that  the  invitation  of  the  two  (lovernments  to 
othe''  :  <>vver^5,  that  tliey  will  give  t  .eir  adhesion  to  this  treaty,  relates 
only  to  the  regulations  we  are  to  provide.  Tthas  no  relation  to  any  other 
jyart  of  the  treaty.  The  object  of  this  invitation  was  not  so  much  to 
prevent  other  powers  from  eucouraiiing  pela^^ic  sealing  in  Bering  Sea, 


104 


'I 


f 

s 

l! 


or  tlie  North  Pacific  Ocean,  as  it  was  to  obtain  tlicir  consent  to  regu- 
lations that  would  ]>iescrve  and  protect  fur-soals  in  the  v>ateis  in  which 
they  are  found  anywhere  in  the  worhl,  if  they  are  generally  adherred  to. 

No  nation  except  (heat  Britjiin  has  found  itself  interested  in  the 
hnnting  of  the  seal  herd  that  resorts  to  Bering  Sea.  The  ]»eople  of 
other  nations  luive  not  carried  on  })elagic  sealing  in  that  herd,  or  in 
the  waters  of  the  North  Pacific  or  IJciing  Sen.  If  the  regulations 
that  we  ado])t  are  foniided  uj)on  or  niodilied  Ijy  the  ])e('uliar  interests 
of  Canada,  or  the  United  vStates  (as  is  jn-oposed  in  the  British  case), 
the  other  powers  will  find  that  they  are  in  no  sense  international,  but 
fire  entirely  local ;  that  they  adox)t  no  gen(M'al  princijtle  of  action  for 
the  ])rotection  and  i>re!='  '•'  ation  of  fur-seals,  but  are  only  an  expedient 
devised  to  get  rid  of  jc  nlar  controversy  between  the  United 

States  and  one  of  the  proviii  of  Great  Britain.  We  (!ould  not  ask 
other  powers  to  adhere  to  regnlatlons  based  on  grounds  so  nariow  and 
selfish.  It  wonld  be  in  etfect  only  a  request  that  they  would  agree 
not  to  interfere  with  this  herd  of  seals  while  they  are  being  divided, 
according  to  an  award  of  this  Tribunal  which  apportions  them  between 
the  United  States  and  Canadian  sealers. 

The  regulations  presented  by  Sir  John  Thompson  appear  to  be  based 
upon  the  recent  modun  vivendi  agreed  upon  between  Russia  and  Great 
JJritain,  to  which  the  attention  of  the  Tribnnal  has  been  called,  liussia 
appears  to  liave  accepted  that  arrangement  as  a  mere  temporaiy  check 
upon  the  aggressions  of  the  pelagic  sealer,  and  has  a(!companied  it 
with  reservations  and  protestafions  tliat  show  her  extreme  unwilling- 
ness to  adopt  it  as  the  final  definition  of  her  rights. 

If  the  award  of  this  Tribunal  should  thus  conform  to  the  plan 
adopted  in  the  Anglo  I'nssian  modns  vivendi,  it  will  either  force  Itussia 
into  terms  of  final  agreement  with  Great  IJritaiu  that  she  would  not 
otherwise  ado])t,  or  it  will  show  a  wide  distinction  betweon  llnssia  find 
the  United  States  in  treating  with  Great  Britain  about  a  subject  of 
the  same  character,  and  in  reference  to  the  same  body  of  waters. 
Bnssia  could  not  finally  adhere  to  the  reguhitions  proposed  in  the  pro- 
gramme presented  hy  Sir  John  Thomi)son,  without  agreeing  to  all  that 
Great  Britain  is  demanding  of  her,  against  much  of  which  she  is 
firmly  i»rotesting. 

Before  stating  the  form  of  regulations  to  which  I  wonld  prefer 
to  give  the  support  of  my  voice  in  this  Tribnnal,  I  will  state  some 
conclusious  of  lact  that  J  have  drawn  from  the  evidence  as  to  the 


105 


;  to  regu- 
i  in  which 
h  erred  to. 
c(l  in   the 
]»eopUi  of 
lU'rd,  or  in 
cgnhitions 
I-  intiMi'sts 
itish  case), 
tional,  but 
"  action  for 
I  expedient 
the  United 
dd  not  ask 
narrow  and 
,'onhl  agree 
ing  divided, 
em  between 

to  be  based 
a  and  Great 
cd.  Russia 
orary  check 
impanied  it 
unwilling- 

-o  the  plan 
Iforce  Russia 
would  not 
Russia  and 
a  subject  of 
of  waters. 
|1  in  the  pro- 
g  to  all  that 
fhich  tihe  is 

I'ould  prefer 

state  son\e 

M  as  to  the 


character  of  the  regnlations  whuih  are  necessary  to  cxecnte  the  pur- 
pose of  both  Governments  to  preserve  and  jirotect  the  fur-seals  of  the 
Alaskan  herd,  and  that  would  also  answer  a  beneficent  purpose  in 
accomplishing  the  universally  declared  wish  of  all  nations  interested 
in  the  subject  of  pr(  teeting  and  preserving  seal  life,  and  in  repairing 
the  damage  that  has  been  intticted  ui)on  it  by  raiders  in  the  absen<'e 
of  governmental  i>rote.ction.  Tliis,  1  take  it,  is  the  real  ground  upon 
which  other  powers  are  to  be  invited  to  give  tlu'ir  adliesion  to  the  reg- 
ulations that  this  Tribunal  may  determine  and  award  as  between 
Great  Britain  and  the  United  States. 

The  regulations,  like  all  en.actments  of  laws  that  are  remedial  in 
their  eharaeter,  are  to  be  framed  with  a  view  to  giving  reli«'f  against 
an  existing  evil,  and  this  ean  only  be  wisely  and  .jtistly  aeeom])lislK'd 
when  the  nature  and  extent  of  the  evil  is  first  ascertained.  Wiien  that 
is  done,  the  nature  of  the  evil  suggests  the  character  of  the  rem<'dy, 
and  we  can  not  frame  the  remedy  that  we  are  to  provide  so  as  to  merely 
check  the  evil  for  a  time,  leaving  it  to  burrow  and  work  its  iiavoc  at  a 
date  that  is  more  acceptable  only  because  it  is  more  distant  from  us. 
The  o«'casion  requires  a  just,  serious,  and  firm  attitude  as  to  a  ques- 
tion of  great  importance  to  the  whole  woild. 

I  will  now  state,  as  I  gather  from  all  the  evidence  before  us,  what  is 
the  evil  that  these  Governments  have  found  to  be  so  threatening  to 
seal  life  in  the  Alaskan  herd  as  to  draw  them  into  an  agreement  that 
it  should  be  repressed  by  their  concurrent  action.    " 

I  will  not  attempt  to  examine  again  the  details  of  the  evidence,  so 
thoroughly  i)resented  and  with  such  judicial  impartiality,  by  Mr. 
Justice  Ilarlan.  I  can  lind  no  tlaw  or  omission  in  his  careful  state- 
ment of  the  evidence,  or  in  the  c<mclusions  that  he  drew  from  it  as  to 
niatters  of  fact.  I  believe  that  he  stated  the  exact  truth  of  the  situa- 
tion, and  I  fully  concur  in  his  treatment  of  the  subject  and  in  the 
conclusions  that  he  has  reached. 

The  i)resent  situation,  as  1  undeistand  it,  is  as  follows,  as  showu  by 
a  comparison  of  the  I'ribilof  and  pelagic  catches: 


Year. 

I'liliilnf 

iHlllIllltl. 

21,2^4 
1 -J.  1171 

7,  fjOti 
7.  f>00 

'i'litnl 
piliijtio 
cutuli. 

1800             

r.i,nr,5 

»18.  (100 

7:t,  :i»4 

*8U,  000 

IHOl 

1S!)2       

181):i.            

'Jotiil 

48,  :ioO      ut:i.  ii4tt  1 

1 

i 


*  Kiitiiiiateil. 


ai  U: 


U]  h ' 


■hi : 

jij: 


il 


'!.].■■■■- 


ii 


106 

In  1889  the  Pribilof  catch  was  102,017,  which  fell  oflf  to  21,234  in 
1890,  and  this  was  all  that  the  islands  would  yield  of  killable  seals, 
leaving  a  deficit,  as  com]>ared  with  the  previous  year,  of  81,379  seals 
npon  the  island...  If  this  contrast  in  the  number  of  seals  that  could 
be  taken  on  the  islands  in  1889  and  1890  was  due  to  the  overkilling 
of  males  on  the  islands,  and  not  to  pelagic  Imnting,  f'C  falling  off  of 
numbers  would  have  been  indicated  in  ea<'h  of  the  six  years  prior  to 
1889.  No  one  has  asserted  su(;h  a  fact,  and  we  know  that  a  male  seal  must 
be  6  years  old  before  he  is  able  to  take  up  and  maintain  a  harem  on 
the  rookeries.  So  that  this  sudden  falling  off  between  1889  and  1890, 
if  it  was  due  to  an  excessive  killing  of  males,  uuist  have  occurred  at 
least  as  early  as  1882.  This  is  not  true,  and  no  one  pretends  that  it  is. 
The  killing  of  51,055  se.als  that  the  pelagic  hunters  got,  and  at  least 
three-fold  that  number,  including  those  that  were  lost,  must  have 
reached  300,000  seals  that  were  destroyed.  Of  this  number,  three- 
fourths  were  females,  that  are  not  killable  seals  on  the  islands,  and  are 
not  counted  in  the  Pribilof  catch. 

The  verification  of  this  calculation  is  almost  perfect  in  1892,  when 
the  pelagic  realers  took  73,000  seals,  and  in  1891  when  they  took 
(»8,000.  The  close  ap])roximation  of  these  figures  shows  that  the  loss 
of  the  seals  on  the  islands  was  due  to  pelagic  sealing,  and  not  to 
the  want  of  virility  in  the  bulls  on  the  breeding  grounds,  or  to  any  other 
cause. 

That  the  process  which  has  actually  depleted  the  seal  herd  in  four 
years  to  the  extent  of  509,005  (273,000  of  which  were  females),  is  an  evil 
that  requires  to  he  remedied,  for  the  saJ:e  of  the  protection  and  preserva- 
tion of  seal  life,  no  one  can  douht,  as  it  seems  to  me.  This  progressive 
depletion  of  this  herd  of  seals  can  not  fail  to  destroy  them  very  soon, 
and,  in  the  meantime,  to  deprive  the  United  States  of  all  possible 
advantage  and  compensation  derived  from  its  efforts  to  save  the  species. 
What  the  United  States  has  done,  or  omitted  to  do,  to  deserve  treat- 
ment at  the  hands  of  this  Tribunal  that  will  expose  its  lawful  indus- 
tries to  ruin,  its  revenues  to  depletion,  and  its  wards  on  the  Pribilof 
Islands  to  the  loss  of  tludr  only  valuable  industry  will  be  an  inquiry 
that,  will  seriously  challenge  the  justice  of  such  an  award,  in  the  esti- 
mate of  the  civilized  world. 

The  evil  to  be  provided  against  by  this  Tribunal  is,  clearly,  pelagic 
seal  in  fi  with  firearms. 

If  there  is,  or  has  been,  any  detriment  to  the  seal  herd  from  the 


107 


to  21,234  in 
liable  seals, 

81,379  seals 
a  tliat  could 
B  overkilling 
Falling  off  of 
iars  prioi'  to 
ale  seal  must 
I  a  harem  on 
80  and  1890, 
}  occnrrod  at 
ids  that  it  is. 

and  at  least 
t,  must  have 
iraber,  three- 
ands,  and  are 

;n  1892,  when 
en  they  took 
that  the  loss 
?,  and  not  to 
to  any  other 

herd  in  four 
es),  is  an  evil 
and  preserva- 
i  progressive 
n  very  soon, 
■  all  possible 
e  the  species, 
eserve  treat- 
awful  indus- 
the  Pribilof 
e  an  inquiry 
in  the  esti- 

iarly,  pelagic 

?rd  from  the 


treatment  of  the  United  States,  on  the  islands,  the  facts  on  this  subject 
were  not  imknown  to  Great  Britian  when  the  treaty  was  made  and 
before  ratifications  were  exchanged.  Tliis  subject  was  not  referred  to 
in  any  of  tlie  correspondence  between  the  Ciovernments,  and  the  treaty 
is  silent  as  to  this  sui)p(>sed  mismanagement. 

Will  the  Tribunal,  in  such  a  case,  make  an  objection  to  protectiiiff 
aiul  |)reserving  the  ftir-seals  on  the  water  because  (treat  Britain  has 
not  thought  it  pioper  or  necessary  to  call  tlie  methods  into  question, 
or  the  United  States  into  account,  for  its  manner  of  dealing  with  that 
subject  on  land?  True,  if  it  can  be  shown  that  the  depletion  of  the 
herd  is  due  to  tliat  cause,  and  not  to  ju'lagic  hunting,  that  is  a  just  and 
])ropei'  i.Kpiiry.  If  it  is  due  to  both  causes,  this  Tribunal  will  deal  with 
//(«'  pclnijie  et'il,  that  is  submitted  to  its  consideration,  and  leave  it  to  the 
nations  concerned  in  tlie  protection  of  seal  life  to  deal  toith  the  evil  on 
land. 

If  the  United  States  are  not  so  wise  in  caring  for  the  seals  on  land 
as  tlie  i)(^lagic  hunters  are  in  <*aring  for  them  at  sea,  as  seems  to  be 
asserted,  they  are  quite  as  earnest  in  the  wish  to  do  so.  They  destroy 
no  female  seals;  while  the  jK'laglc  hunter  never  spares  one.  They  d(» 
not  fire  upon  the  breeding  rookeries  when  tlie  seals  are  massed,  many 
of  them  asleep,  witli  double-barrelled  shotguns  and  buck-shot  car- 
tridges.   Tliey  do  not  kill  indiscriminately  all  seals  that  come  in  sight. 

Tlie  United  States  jiertnit  no  female  seals  to  be  killed;  while  75  per 
centum  of  those  killed  by  the  i)elagic  hunter  are  females  heavy  with 
young  and  almost  heljdess. 

In  that  condition,  as  well  as  in  accordance  with  a  law  of  tlieir  natuie, 
which  isan  imi)ortantfactin  connection  with  theirdoniesticity,  thefenuile 
fur-seal  require  a  great  deal  of  sleep.  Wlien  asleep,  they  turn  upon 
their  backs,  fold  their  flippers  over  their  breasts,  and  curving  their  hind 
flippers  upw.ards,  they  form  of  their  bodies  a  sort  of  boat,  the  spinal 
(;olnmn  representing  the  keel.  They  can  only  breathe  the  upper  air; 
they  can  not,  lilce  a  fish,  extract  air  from  the  water.  While  sleejiing 
their  noses  are  above  the  water.  After,  inhaling  the  air  the  nostrils 
close  firmly  together,  and  the  air,  heated  by  their  bodies,  expands  and 
buoys  them  up.  They  seldom  breathe  oftener  than  once  in  fifteen  min- 
utes, and,  when  diving,  they  need  not  return  to  the  surfiice  for  siir 
ofti'ner  tlian  every  thirty  minutes.  We  know  notliing  of  their  habits 
sit  night  while  in  the  ocean.  On  land  they  are  sd  boistc^rous  at  night 
with  their  bowlings  that   sleei)  would  seem  to  be  impossible,  except 


fl 

11                  -^  \ 

III 


Vit 


108 

from  sheer  cxliaustion.  They  have  not  a  keen  vision,  and  the  sunlight 
is  piiinful  to  them,  so  that  they  leitve  the  hmd  and  go  to  sea  on  days  tliat 
are  bright.  This  causes  them  to  seek  a  summer  home  in  a  phice  where 
fogs  and  rains  prevail.  Yet  they  must  have  warmth.  Nature  has  amply 
ju'ovided  for  this  necessity  by  giving  them  a  double  coating  of  thick, 
strong  hair,  and  of  the  thickest  and  finest  fur  that  was  ever  bestowed 
ui)on  any  sj)ecies  of  animals.  It  is  as  injpervicms  to  water  as  the  down 
of  an  eider  duck.  The  pups  sire  born  without  this  fur,  and  hen<;e  their 
aversion  to  swimming  until  it  has  grown  out;  and  this  detains  them  on 
hind  for  four  months,  at  least,  during  which  ])eriod  they  can  subsist 
only  «)n  tlu',  nnlk  of  the  cow  seals.  While  their  vision  is  not  keen,  tlieir 
auditory  organs  and  sense  of  smell  are  exceedingly  acute.  They  are 
attracted  by  sounds  as  few  other  animals  are.  In  this  faculty  they 
make  a  close  approach  t.o  the  endowments  of  juankind.  Sir  John 
TiKunpson  is  amused  at  an  account,  read  by  Mr.  Justice  Harlan,  of  the 
seals  being  attracted  in  great  numbers  near  to  tlie  slnu'e  atlJoy  by  the 
ringing  of  a  church  bell.  In  his  incredulous  sport  over  this  inctideut 
Sir  .John  forgot  that  it  is  the  personal  observation  of  Mr.  Low,  one  of 
tin'  greatest  naturalists  who  ever  lived,  the  friend  and  comi)anion  of 
(hivier,  and  is  more  tlian  confirmed  by  M.  I'eron,  whom  France  has 
honored  in  the  most  conspicuous  Avay.  His  abilities  as  a  naturalist, 
ac(iuainted  intimately  with  seal  life,  are  as  far  in  advance  of  those  ot 
Trof.  Elliott,  from  whom  Lord  Uannen  quotes  with  much  satisfaction, 
as  Napoleon  was  in  advance  of  the  Sioux  chieftain,  Sitting  Uull,  as  a 
militaiy  genius. 

I  will  presently  quote  something  further  about  fur-sejils  from  Jfr. 
Peron. 

1  know  Mr.  Elliott,  whom  the  British  Government  has  dubbed  "pro- 
fessor."' I  have  respect  for  his  character  and  sprightliness.  He  is  a 
])ai!iter  in  water  colors  of  no  mean  pretensions,  but  his  use  of  color 
does  not  stop  with  his  canvas.  It  enters  into  all  he  says,  and  makes 
him  too  vivid  au  enthusiast  for  a  safe  reliance  on  questions  of  measure- 
ments, statistics,  and  cold  facts.  Mr.  Elliott  was  tmt  on  the  Pribilof 
Islands  on  the  10th  of  July,  181)0,  taking  field  notes,  which,  to  be  of  any 
value,  slumld  be  free  from  all  romantic  conjecture.  The  following  is 
one  of  his  highly  colored  extra(!ts  taken  from  his  report  of  that  day: 

In  company  with  Mr.  Goft"  and  Dr.  Lut/,  I  made  my  i)lotting  of  the 
breeding  seals  as  they  lay  on  the  Keef  and  Garbotch  to-day. 
Here  at  the  very  height  of  the  breeding  season,  when  the  nuisscs 


109 


he  sunlight 
III  days  that 
place  where 
■e has  amply 
iig  of  thick, 
er  bestowed 
as  the  down 
I  henee  their 
niiis  them  on 

ran  subsist 
»t  keen,  their 
e.    They  are 

iaeulty  they 
1.  Sir  John 
[arlan,  ol" the 
it  Hoy  by  the 

this  ineitlent 
',  Low,  one  ot 
eonipaniou  of 
n  Fraiuje  has 
i  a  naturalist, 
!e  of  those  ot 
satisfaction, 

iig  Bull,  as  a 

leals  from  ^Ir. 

hnbbed  "  pro- 
|ss.     lie  is  a 
use  of  color 
5,  and  makes 
Is  of  measnie- 
h  the  Pribilof 
|i,  to  be  of  any 
following  is 
of  that  day: 
lotting  of  the 

li  the  masses 


were  most  compact  and  uniform  in  their  distribution  in  lS62-'74,  T  find 
the  animals  as  they  lay  to  day,  scattered  over  twice  and  thrice  as  much 
ground  as  a  rule,  as  the  same  number  would  occupy  in  1872 — scattered 
because  the  virile  bulls  are  so  few  in  number  and  the  service  which 
they  render  so  delayed  or  impotent.  In  other  words  tiio  (tows  are  rest- 
less; noi  being  served  when  in  heatj  they  seek  other  bulls  by  hauling 
out  in  green  jagged  points  of  massmg  (as  is  shown  by  the  chart),  up 
from  their  landing  belts. 

This  unnatural  action  of  the  cows,  or  rather  unwonted  movement, 
has  caused  the  pups  already  to  form  small  pods  everywhere,  even  where 
the  cows  are  most  abundant,  which  shadows  to  me  the  truth  of  the 
fact  that  in  five  days  or  a  week  from  date,  the  scattering  conipletely  of 
the  rookery  organization  will  be  thoroughly  done;  it  did  not  take  place 
until  the  20th-2.'5th  July,  1872. 

In  1872,  these  cows  were  promptly  met  with  the  service  which  they 
craved  on  the  rookery  grouml.  The  scattering  of  these  old  bulls  today 
over  so  large  an  area,  is  due  to  extreme  feebleness  and  combined  in 
many  cases  to  a  recollection  of  no  distant  djiy  when  they  had  previ- 
ously hauled  thus  far  out  on  this  very  ground  surrounded  by  bareness, 
though  all  is  vacant  and  semi  grass  grown  under  and  around  them  now. 

The  fur-seals,  so  well  provided  against  cold,  are  yet  so  sensitive  to 
its  effects  that  they  go  south  at  the  approach  of  winter  and  seek  their 
food  in  the  great  river  of  warm  waters  that  comes  from  the  tropical 
coast  of  Asia  and  pours  its  flood  across  the  Pacific  Ocean.  It  bears 
enormous  treasures  of  fish  food,  and  swarms  with  schools  of  herring, 
salmon,  and  squid.  The  migratory  fishes,  that  naturally  feed  against 
the  current,  pursue  the  track  of  this  warm  river  in  the  ocean  and 
ascend  it.  This  lerals  them  to  the  northern  coast  of  the  United  States, 
and  thence  around  the  great  curve  which  this  river  has  formed  on  the 
coast,  past  British  Columbia,  to  the  south  of  the  Alaskan  peninsula. 
The  fur-seals,  finding  warmth  and  food  in  this  ocean  current,  enter  it 
when  they  quit  the  breeding  islands  and  Bering  Sea,  in  Novend)er,  and 
must  stay  in  the  broad  expanse  of  warm  waters,  where  it  ceases  to 
flow,  during  a  considerable  part  of  the  winter.  There  they  remain  in 
search  of  the  herring  and  other  vast  schools  of  migratory  fishes  that 
are  surface  swimmers  and  feeders,  and  they  follow  them  on  their  way 
to  the  spawning  grounds,  as  the  seals  return  to  their  summer  abode  on 
the  islands  to  the  north  of  the  Aleutian  peninsula,  where  the  Arctic; 
current  and  the  Asiatic  river  meet. 

Around  the  great  curve  I  have  mentioned,  this  ocean  current  s('ts  in 
close  to  the  shore,  flowing  southward,  and  its  warm  waters  nuike  the 
winter  climate  in  those  high  latitudes  and  altitudes  nearly  as  soft  and 
genial  as  that  of  Ireland,  and  for  the  same  reason.  The  seals  are  thus 
drawn  into  numerous  large  assemblages  or  schools  near  to  the  western 


1% .; 


4     ! 


m 


110 

const  of  North  America,  aiul  are  in  easy  learh  of  tho  ''Industry'' nf 
]H'Iagic  sealers. 

They  must  travel  a  groat  deal  in  the  ni.^lit  time,  in  tliis  they  are 
jjuided  and  protected  by  their  .sense  of  iiearinj;-  and  smell,  and,  like 
the  cat,  they  are  provided  with  several  rows  of  whiskers  tinit  are  very 
sensitive  and  that  admonish  them  of  danger  iu  places  where  they  can 
not  see  their  way. 

The  gravid  females  must  necessarily  sp(Mid  a  large  part  of  each  day 
in  seeking  food,  and  do  not  travel  so  last  as  the  male  seals.  Their  exer- 
tions are  necessarily  very  taxing  to  their  strength  and  require  them 
to  sleep  frequency  during  the  day. 

I  Inive  made  this  statement  of  facts  ami  conclusions,  as  1  draw  them 
from  the  evidence,  to  support  the  further  conclusion  of  fact,  which,  I 
think,  is  unavoidable,  that  the  war  upon  the  gravid  female  seals  is 
like  -,1  war  upon  the  women  ami  children  of  a  naticm,  which  all,  except 
the  most  depraved  of  savage  nations,  abhor.  True,  these  are  beasts; 
but  they  are  harndess,  docile,  useful  beasts,  and  very  hel[>less,  and 
when  they  are  denied  any  nu)re  protection  by  tlie  sui)posed  law  of 
nati<»ns  against  the  nuurenary  ferocity  of  the  i)elagie  sealer  than  is 
given  to  tigers  or  serpents,  while  I  am  empowered  to  vot(!  iu  this  Tri- 
bunal, which  is  m)w  their  only  protector,  I  nuist  vote  at  least  to 
disarm  the  jH'Iagic  sealer  of  his  double-barreled  shotgun,  or  else  to 
confine  his  warfare  to  an  area  of  watcis  and  to  a  close  season  where 
his  powers  of  destriu'tion  will  not  exterminat«!  the  race. 

If  I  could  find  no  better  reason  for  restraining  the  pelagic  hunters 
from  the  use  of  double-barreled  shotguns  in  their  •' si)ortsmanlike" 
business  of  killing  gravid  females  and  nursing  mother  seals  iu  order  to 
earn  $10  a  piece  from  each  pelt,  I  would  Join  my  voice  with  that  of  every 
respectable  legislature  iu  the  world  iu  their  careful  and  highly  [>enal 
euactments  for  the  prevention  of  cruelty  to  animals,  and  wonld  at  least 
put  the  fennde  seals  uiider  the  protection  of  proper  regulations  to  be 
awarded  by  this  Tribunal. 

On  this  point  I  will  quote  from  The  Naturalist's  Library  (j).  81),  which 
thus  describes  the  cruelties  iidlicted  npon  these  valuable,  docile,  aiul 
harndess  aniuuils: 

Before  proceeding  to  make  the  few  remarks  which  our  liuuts  allow 
on  the  valuable  products  derived  from  these  animals,  we  would  say  a 
word  or  two  upon iheir  ca[)ture.  They  are  exceedingly  tenacious  of  life, 
and  many  cruelties  have  been  perpetrated  upon  them,  which  most  who 
have  witnessed  declare  to  be  too  horrible  tor  description,  and  over 
which  we  willingly  draw  a  Neil.    Jf  life  is  to  be  sacriticed,  there  is  a 


Ill 


industry''  of 

liis  tlu7  nu-. 
I'll,  sumI,  likf 
liat  iiie  very 
cie  they  ciiii 

of  eiicli  iliiy 

Their  exei- 

itMiuiie  them 

1  draw  them 
fact,  whieh,  I 
male  seals  is 
eh  all,  exeept 
se  aie  beasts; 
helpless,  and 
)posed  law  of 
iealer  than  is 
te  in  this  Tri- 
e  at  least  to 
\ii,  or  else  to 
season  where 

llajiie-  hunters 

[ortsmanlike" 

lis  in  order  to 

that  of  every 

highly  i>enal 

ould  at  least 

llations  to  be 

()).  81),  whieh 
.^,  doeile,  and 


limits  allow 
would  say  a 
laeiousof  Ufe, 
Sell  most  who 
1)11,  and  over 
)d,  there  is  a 


right  way  of  taking  it  jih  well  as  a  wron.,,  and  we  insist  that  the  former 
should  be  followed  and  the  latter  avoided,  liefore,  however,  entering 
upon  thistoi>ie,  wo  take  leave  to  remark  that  it  is  impossible  toiuves- 
tigato,  as  we  have  done,  the  natural  history  of  these  animals  without 
discovering  how  much  their  capture  has  been  made  a  matter  of  mere 
amusement  and,  as  it  is  familiarly  but  emphatically  called,  of  sport. 
We  venture  to  demm nee  all  such  sports  as  both  indefensible  and  wrong. 
Animals  have  been  given  to  provide  for  the  necessities  and  comforts  of 
man,  but  not  that  he  may  gratify  himself  with  their  dying  agonies:  and 
he  is  wholly  inexcusable  if  even  here  he  breaks  the  golden  rule  of  doing 
as  he  would  be  dmw,  by.  Sporting  with  the  feelings,  and  pains  and  lives 
of  these  creatures  has  a  strong  tendency  to  lead  to  cruelty  and  wick<'d- 
nessj  and,  therefore,  this  inherent  tendency  should  be  checked  in  the 
bud  and  invariably  opjiosed.  When  we  witness,  says  I'eron,  a  thought- 
less sailor  hastening  tor  his  amusement,  club  in  hand,  into  the  midst 
of  a  great  herd  and  surrounding  himself  with  their  dead  bodi«'S,  we 
can  not  but  sigh  over  this  imiu-ovidence  and  cruelty  which  lays  low  so 
mauy  peaceful,  gentle,  and  unhappy  beings. 

While  I  have  the  book  in  hand,  I  will  read  other  extracts  in  relaticui 
to  the  docility  of  the  seals,  on  pages  73  to  77 : 

At  a  particular  season  of  the  year,  every  male,  inflamed  with  lust, 
and  jealous  almost  at  its  shadow,  lords  it  over  his  numerous  harem 
with  even  more  than  eastern  despotism,  and  thereby  throws  the  whole 
community  into  a  state  of  the  highest  excitement  and  agitation.  Dur- 
ing this  period,  which  continues  for  months,  many  a  jealous  Bashaw, 
as  these  animals  have  not  inaptly  been  designated,  engages  in  fearful 
strife  with  arival;  the  contest  is  often  long  andobstinate,aswellas  most 
sanguinary  and  fatal.  Nor  does  it  end  with  these  doughty  champions. 
Other  males  soon  imagine  that  their  interests  are  involved,  or  their 
rights  invaded,  and  the  strife  spreads  from  family  to  family,  till  at 
length  the  whole  community  is  involved  in  one  general  melee  of  j>as- 
sion  and  rage,  of  fierce  cries  and  groans,  of  blood  and  death;  and, 
after  all,  short  is  the  triumph  of  the  coiupieror,  and  deep  and  poignant 
the  chagrin  and  nialico  of  the  vanquished. 

Originally,  and  therefore  we  are  dis]>osed  to  hold  that  naturally, 
these  amphibia,  far  from  having  a  dread,  have  rather  a  reposing  con- 
fidence in  man.  When  a  young  one  by  an  accident  is  separated  from 
its  jiarents  and  comes  in  contact  with  man,  instead  of  shunning  it 
courts  its  company.  It  will  follow  him,  and  if  the  linger  be  held  out 
will  suck  it  like  many  domestic  animals.  Through  the  kindness  "f 
Prof.  Trail  we  can  illustrate  this  trait  in  their  mental  constitution  by 
an  interesting  incident  of  which  he  was  a  witness,  and  whieh,  with 
several  other  anecdotes,  we  can,  through  his  i)olite  attention,  record  in 
his  own  words:  "A  little  islet  in  Orkney,  called  the  Holm  of  Papa 
Westray,  had  long  been  a  favorite  haunt  of  numerous  seals,  which  had 
become  more  than  usually  tame  from  the  care  of  the  proprietor  of  the 
adjoining  island  to  prevent  their  being  molested.  On  visiting  that 
gentleman  in  1833  I  found  the  seals  exhibited  their  wonted  confidence 
in  those  who  approached  their  protected  haunt.  Several  of  them  swam 
along  the  shore  as  a  party  of  six  or  eight  persons  walked  along  the 
beach,  and  did  not  in  general  keep  farther  from  us  than  30  or  40  yards. 
When  we  turned  so  did  they,  and  when  we  reimtered  our  boat  they 
followed  it  in  the  narrow  channel  that  divides  Holm  from  the  island  of 
Papa.    Seals  are  said  to  relish  music,  and.  a  seal  hunter  ouce  informed 


112 


h!ii  it 


iiHi  that  the  souiid  of  n  fliito  will  alliiro  thorn  to  »  boat;  but  in  tho 
sibovii  instaiici!  it  was  iiuMely  tim  conseqiuMico  of  no  j{im  bt'iiif;  ever 
lifted  against  them  in  that  islet  which  lias  won  their  contidcnee  in 
man."  Nor  is  tiiis  ehara<;teiistic  less  strikingly  exemplifu'd  by  an 
observation  nnule  by  Mr.  Dnnbar,  tiie  i)resent  iiienmbent  of  tlie  parish 
of  Ai)i>Ie{jartli,  dnring  his  residence  at  a  former  period  in  one  of  the 
Hebrides,  in  a  letter  to  Mr.  Liziirs,  which  appeared  in  tho  last  volume 
of  tlie  Naturalists'  Library,  we  Und  the  followiiifr  statement:  "While 
my  pupils  and  1  were  bathinjf,  whii^h  we  often  did,  in  tho  bosctm  of  a 
beautiful  bay  in  tiie  ishmd  named,  from  the  circumstance  of  its  being 
a  favorite  haunt  of  the  iinimal,  Seal  l»ay,  rnunbers  of  these  creatures 
invariably  mad(i  thcii-  ai)pearance,  especially  if  the  weather  was  calm 
and  sunny  and  the  sea  smooth,  crowding  around  us  at  the  distance  of 
a  few  yards,  and  looking  as  if  they  had  some  kind  of  notion  that  wo 
were  of  the  same  genus  with  themselves.  The  gambols  in  the  water 
of  my  playful  companions  and  their  noise  and  merriment  seemed,  toonr 
innigination,  to  excite  them  and  to  make  them  course  round  us  with 
greater  rapiility  and  animiition.  At  the  sanu'.  time  the  slightest  attempt 
on  our  part  to  act  on  tho  ()l1'eiisive,  by  throwing  at  them  a  stone  or 
shell,  was  tho  signal  for  their  instantaneous  disappearaui^e,  each  as  it 
vanished  leaving  the  surface  of  the  water  beautifully  tigured  with  a 
wavy  succession  of  concentric  circles." 

•  *«**•  • 

In  tho  prev  ious  paragraph  allusion  is  castially  made  to  tho  notion 
that  these  aninuils  are  not  inditt'crcnt  to  the  charms  of  music,  whilst 
we  believe  it  may  be  safely  atlirmed  that  this  assertion  is  more  frecpiently 
nnule  than  credited.  The  statement,  however,  appears  to  bo  jierfectly 
correct;  and  the  following  <|Uotations,  the  former  from  the  celebrated 
Orkney  naturlist.  Law,  and  the  latter  from  Mr.  Dunbar  Just  quoted, 
are  sullicient  to  banish  all  skepti(;lsm  on  the  point.  "If  ])eople  are 
l)asKiiig  in  boats  the  seals  otten  come  close  up  to  them  and  stare  at 
them,  following  for  a  long  time  together;  if  people  are  speaking  loud 
they  sc  }m  to  woinler  what  nniy  be  the  matter.  The  church  of  lloy  is 
situateil  near  a  snnill  sandy  bay  much  frequented  by  these  creatures, 
and  I  observed  when  the  bell  lang  for  divine  service  all  the  seals 
within  hearing  swam  directly  for  shore,  and  kept  looking  about  them, 
as  if  surprise<l  rather  than  frightened,  and  in  this  manner  continued 
to  wonder  as  long  as  the  bell  rang." 

And  again  Mr.  Lizars's  corresiK)ndent:  "The  fondness  of  these  ain- 
nmls  for  nnisical  sounds  is  a  curious  peculiarivy  in  their  nature,  and 
has  been  to  me  often  a  subject  of  interest  and  annisement.  During  a 
residence  of  some  years  in  one  of  tho  Ifebrides  £  had  nniny  opportu- 
nities of  witnessing  this  peculiarity,  and  in  faci  could  call  forth  its 
nninilestation  at  pleasure.  In  walking  along  the  shore  in  the  calm  of 
a  summer  afternoon  a  few  notes  of  my  tluto  would  bring  half  a  score 
of  them  within  .'iO  or  40  yar«ls«>f  me;  and  there  they  would  swim  about, 
with  their  heads  above  water,  like  so  many  black  dogs,  evidently  do- 
lighted  with  the  sounds.  Fov  half  an  hour,  or,  indeeil,  for  any  length 
of  time  I  chose,  I  could  lix  them  on  the  spot;  and  when  I  moved  along 
tho  water  edge  they  would  Ibllow  nie  with  eagerness,  like  tho  dol 
phins  who,  it  is  said,  attended  Arion,  as  if  anxious  to  prolong  the 
enjoyment.  I  have  IVi^quently  witnessed  the  same  effect  when  out  on 
a  boat  excursion.  The  sound  of  a  tlute  or  of  a  common  flfo  blown  by 
one  of  the  boatmen  was  no  sooner  heiird  than  lialfa  dozen  would  start 
np  within  a  few  yards,  wheeling  roun«l  us  as  long  as  the  music  played, 
and  disappearing  one  after  another  when  it  ceased." 


113 


)nt  in  tlio 
RMiij?  ever 
tUleiice  III 

.f(l  by  ini 
the  parisU 
one  of  the 
list  volume 
,t,.  "While 
t)()Soiu  of  11 
f  itw  being 
ic  event nres 
>v  was  eiiliii 
(listaiieeot 
ion  that  we 
I  the  water 
ouied,  to  our 
uul  us  with 
test  attempt 
,1  a  stone  or 
e,  each  as  it 
laired  with  a 


;o  the  notion 
music,  whilst 
jre  fre«iuently 
o  be  perfectly 
Ihe  celebrated 
just  quoted, 
If  people  are 
and  stare  at 
.peakiuK  1«>»»«1 
rch  of  Hoy  >H 
bse  ereatures, 
all  the  seals 
,-•  about  them, 
[ler  continued 

i  of  these  aid 
nature,  and 
lit.    Durinfi  a 
liany  opportu- 
\  call  forth  its 
In  the  calm  ot 
Ir  half  a  score 
flswim  about, 
1  evidently  de- 
I'or  any  lengtli 
1  moved  along 
1  like  the  dtd- 
prolong  the 
0  when  out  on 
fife  blown  by 
^u  would  start 
[music  played, 


Again  I  road  from  the  same  volume  to  prove  what  I  have  said  about 
the  sense  of  healing,  touch,  and  smell  that  seals  possess  (pages  0")  and 
C6): 

The  truth  is,  the  eye  of  the  Amphibia  is  a  perfect  study  and  would 
W'  II  repsiy  a  lengthened  des('iii)tion.  It  is  very  large  and  quite  splii'i- 
ical;  sclerotic  or  outer  membrane  is  very  peculiar,  inasnnich  as  it  has  a 
soft  and  thin  zone  around  its  middle,  fliic.Uly  covered  with  muscles, 
whilst  both  before  and  behind  it  is  thick  and  almost  eai  til;igiii(ms. 
The  precise  use  of  this  structure  lias  not  yet  been  discovered,  thoiigli 
Hlumenbach  has  thrciwn  out  the  i<lea  that  it  may  enable  Ihe  seal  to  see 
both  in  air  and  water.  Kosenthal  so  far  confirms  this  opinion  l»y  hav- 
ing observed  that  the  mechanism  is  peculiar  to  those  animals  which 
live  in  a  dense  medium,  sticli  as  water;  tliat  the  remarkable  thickness 
of  the  coat  is  found  in  tlios(!  .miinal.*'  in  which  the  orbit  is  not  wholly 
osseous,  and  that  some  tlslies  have  the  sclerotic!  nearly  cartilaginous. 
With  regard  to  thw  ear,  it  ought  not  to  be  forgotten  tliat  fishes,  with 
no  external  ear  or  aperture,  have  in  their  native  element  an  aeuteness 
of  hearing  which,  according  to  some  respectable  authorities,  far  exceeds 
our  own,  and  Kosenthal  states  that  the  auditory  nerve  of  the  seal  ia 
very  large.  Respecting  the  sense  of  touch,  we  shall  here  quote  M.  F. 
Cuvier.  who  well  remarks  :  "The  whiskers  are  very  cnsible  portions 
of  the  sense  of  touch.  Those  hairs  placed  on  each  side  of  the  mouth 
and  at  the  corner  of  ohe  eye  communicate  with  nerves  which  are 
remarkable  for  their  size,  and  to  which,  as  I  have  often  convinced  myself, 
the  slightest  impression  communicates  an  immediate  sensation."  So 
it  is,  we  believe,  with  the  other  senses,  which  we  consider  wonderfully 
adapted  to  both  elements.  Thus  Bultbn  remarks  of  the  monk  seal  on 
land-  "It  has  a  very  acute  hearing,  since  even  at  a  distance  it  never 
fai  led  to  obey  or  respond  to  its  master's  voice ; "  and  thus  Capt.  Scoresby : 
"Seals  appi'ar  to  hear  well  under  the  water.  Music  or  particularly  a 
l)eison  whistling  draws  them  to  the  surface  and  induces  them  to 
stretch  out  their  necks  to  the  utmost  extent,  so  as  to  prove  a  snare  by 
bringing  them  within  the  reach  of  the  shooter;"  Jind  Weddell:  "Their 
sense  of  hearing  is  acute,  and  also  their  sonse  of  smell."  It  is  on 
account  of  this  last  sense  that  the  Greenlanders  always  endeavor  to 
approach  them  against  the  wind.  And  were  we  to  judge  of  their  taste 
by  the  keenness  with  which  they  relish  flieir  food — few  animals  jxissess 
it  in  equal  perfection.  The  greatest  gourmand's  teeth  do  not  water  at 
the  aiitici]>ation  of  the  richest  feast  as  do  theirs  in  expectancy  of  their 
common  food.  "A  copious  saliva,"  saysM.  F.  Cuvier,  "fills  and  flows 
from  their  mouth  during  deglutition,  and  not  less  so  the  moment  the 
seal  perceives  its  prey." 

As  to  their  breathing,  I  will  read  from  pages  56,  57,  and  58,  where 
the  following  is  stated: 

Having  thus  noti(!cd  that  the  external  structure  of  these  Amphibia  is 
admirably  adapted  for  their  watery  element,  and  yet  made  wonderfully 
conformable  to  their  requirements  on  land,  we  proceed  to  remark  that 
their  vital  functions  also  are  strikingly  fitted  for  their  peculiar  exigen- 
cies. Their  respiration,  as  might  readily  be  inferred,  differs  consider- 
ably from  what  is  observed  in  most  other  animals.  Even  the  air  pas- 
sages undergo  a  change  which  ought  not  to  be  overlooked.  We  refer 
particularly  to  the  nostrils,  whose  state,  unlike  that  of  other  qnad- 
11495  M 8 


!     i 


114 


nipeds,  Is  that  of  being  habitually  closed,  instead  of  being  uniformly 
open.  This  was  first  noticed,  we  believe,  in  a  walrus  domesticated  in 
England,  of  which,  as  will  appear'  in  our  account  of  that  animal,  it  was 
snid:  "It  can  open  and  shut  its  nostrils  at  pleasure."  The  Count 
Buftbn  again  pointed  out  the  peculiarity  in  a  tame  seal  which  he 
examined :  "  In  the  intervals  of  br  oatliing,  the  nostrils  were  accurately 
closed,  and,  on  the  act  of  inspiration  being  completed,  they  were  sliut 
as  before."  M.  F.  Cuvier,  at  a  later  period,  made  a  similar  observation, 
so  that  we  apprehend  we  may  safely  affirm  that  this  peculiarity  exists 
in  the  air  passages  as  their  ordinary  condition.  This  state  of  parts  of 
course  supplies  ready  means  of  jiulging  of  the  frequency  of  respiration, 
and  here,  too,  there  appears  to  be  a  marked  difference,  even  on  land, 
from  what  ol)taiii8  among  other  animals.  Thus  Button,  in  the  instance 
already  alluded  to,  remarks:  "The  period  between  its  several  inspira- 
tions was  very  long;  the  creature  opened  its  nostrils  to  make  a  strong 
expiration,  which  was  immediately  followed  by  an  inspiration,  after 
which  it  closed  them,  often  aUowing  tliem  minutes  to  intervene  without 
taking  another  breath."  In  connection  with  this  peculiarity,  M.  F. 
Cuvier  makes  an  additional  and  important  remark :  "  Notwithstanding 
the  slow  and  irregular  breathing  of  these  animals,  the  regnlar  supply 
of  air  to  the  lungs  is  in  no  degree  diminished,  if  we  may  Judge  from 
the  very  free  motion  of  tlie  libs,  and  the  great  quantity  of  air  exi)elled 
at  each  expiration.  In  truth,  the  quantity  of  air  taken  in  nuikes  up 
for  the  small  number  of  the  respirations;  for  few  of  the  Mammalia 
have  appeared  to  me  to  Iwive  s(»  higli  a  natural  temperature  as  the  seals. 
But,  however  grea*^  the  peculiarity  as  exhibited  on  land  may  be,  it  is 
trifling  when  compared  to  its  singularity  in  water,  where  it  is  not 
uncommon  for  these  animals  to  remain  ibr  a  quarter  of  an  Iiour  at  a 
time  under  the  siuface  (the  usual  period  even  for  whales);  and  we  are 
not  prepared  to  state  what  the  extreme  limit  may  be.  Thus,  Crantz 
states  that  when  harpooned  they  must  come  up  in  about  a  quarter  of  an 
hour  to  take  breath;  and  Mr.  Edmonston  infor.ns  us  that  he  <>!U!e  saw 
one  of  the  bearded  seals  entangled  in  a  net,  which  struggled  with 
amazing  force  for  more  than  twenty-five  minutes  without  once  inspiring, 
and  yet  was  brought  to  the  surface  alive.  An  observation  of  M.  F. 
Cuvier  is  still  more  remarkable.  He  states,  concerning  those  whitli 
were  preserved  in  the  menagerie  at  Paris,  that  he  has  seen  tliem  wliile 
asleep  keep  their  h«  ads  under  water  consecutively  and  consequently 
without  breathing  for  an  hour  at  a  time.  This  is  an  extraordinary 
phenomenon,  even  allowing  that  the  aninml  was  in  that  somewhat 
lethargic  condition  to  which  we  shall  ere  long  allude. 

As  to  their  destruction,  by  unrestricted  hunting,  the  following  pages 
may  be  referred  to :  pp.  93,  95,  96,  and  97,  where  it  is  said : 

The  time  was  when  cargoes  of  those  sk.ns  yielded  $5  or  16  apiece  in 
China,  aiul  the  present  price  in  the  English  market  averaged  from  30 
to  50  shillings  per  skin.  The  number  of  skins  brought  off  from  Georgia 
can  not  be  estimated  at  fewer  than  1,200,000;  the  island  of  Desolation 
has  been  equally  productive,  and  in  addition  to  the  vast  sums  of  money 
which  these  creatures  have  yielded  it  is  calculated  that  several  thousand 
tons  of  shipping  have  annually  been  employed  in  the  traftic. 

*  •  •  These  valuable  creatures  have  often  been  found  frequent- 
ing some  sterile  islands  in  in luimerable  multitudes.  By  way  of  illus- 
tration, we  shall  refer  only  to  the  fur  seal,  as  occurring  in  South  Shet- 
land.   On  this  barren  spot  their  numbers  were  such  that  it  has  been 


115 


miformly 
:icated  in 
al,  it  waa 
xe  Oouut 
which  he 
,ccttrately 
were  slitit 
servation, 
lity  exists 
>f  parts  of 
aspiration, 
I  on  laiul, 
le  instance 
•ai  inspira- 
le  a  strong 
ition,  after 
ue  without 
rity,M.  F. 
thstandiJig 
liar  supply 
judge  from 
iiv  expelled 
u  nuikes  up 
Mammalia 
IS  the  seals, 
nay  be,  it  is 
re  it  is  "ot 
,n  hour  at  a 
and  we  are 
hus,  Crautx 
[uarter  of  an 
[he  once  saw 
iggled  with 
-e  inspiring, 
ion  of  M.  V. 
[those  which 
L  tliem  while 
lonsequently 
:traordinary 
somewliat 

)wiug  pages 


I $6  apiece  in 

VgeS  from  30 

rom  Georgia 

'  Desolation 

jis  of  money 

lal  thousand 

lid  frequent- 
Iway  of  ilUis- 
1  South  Shet- 
,  it  has  been 


estimated  that  it  could  have  continued  permanently  to  furnish  a  return 
of  100,000  furs  a  year;  which,  to  say  notliing  of  tl>e  public  benefit,  would 
have  yielded  annually  from  this  spot  alone  a  very  haiidsome  sum  to  the 
adventurers.  But  what  do  these  men  do?  In  two  short  yoars,  1821- 
'22,  so  great  is  tiie  rush  that  tliey  destroy  .'VJO,000.  T hoy  killed  all  and 
spared  n(me.  The  moment  an  animal  lauded,  though  big  with  young, 
it  was  destroyed.  Those  on  shore  were  lik<nvise  immediately  despatcliccl, 
though  the  cubs  were  but  a  day  old.  Those  of  eourse  all  died,  thoir 
numl)or,  at  tiie  lowest  calculaticm,  exceeding  MK),000.  No  wonder,  then, 
that  at  the  end  of  the  secoml  year,  tiie  animals  in  this  locality  were 
nearly  extin(tt.  So  it  is,  we  add,  in  other  lo'.;alitios,  and  so  with  other 
seals;  so  with  the  oil  seals,  and  so  with  the  whale  itself,  every  addition 
only  making  bad  worse.  And  all  this  miglit  easily  be  prevented  by  a 
little  less  barbarous  and  revolting  cruelty,  and  a  little  nuu-e  enlightened 
sellishness.  Fisliormen  are  by  law  restrained  as  to  the  size  of  the 
meshes  of  their  nets  in  taking  many  of  our  more  valuable  lish;  and  in 
tiie  Island  of  Lobos.  in  the  Kiver  Thita,  where,  as  we  have  seen,  there 
are  quantities  of  seals,  their  extermination  is  i)revented  by  the  governor 
of  Montevideo,  who  farms  out  the  trade  under  the  restriction  that  the 
hunters  shall  not  take  them  but  at  stated  periods,  ages,  etc.  *  *  * 
With  regard  to  the  seal  fishery  of  the  south  the  Englisli  and  Ameri- 
cans have  exclusively  divided  it  between  them,  and  witli  very  great 
profits.  It  has  lately  been  stated  that  they  together  employ  not  fewer 
than  sixty  vessels  in  the  trade  of  from  2.'30  to  300  tons  burden.  Tiiese 
vessels  are  strongly  built  aiul  have  each  six  boats,  like  those  of  the 
whalers,  together  with  a  small  vessel  of  40  tons  which  is  put  in  requi- 
sition when  they  reacli  the  scene  of  tlioir  operations.  Tlie  crew  con- 
sists of  about  twenty-four  liands;  their  object  freiinontly  being  to  select 
a  certain  fixed  locality  from  which  they  make  their  various  battues. 
Thus  it  is  very  common  for  the  ship  to  be  moored  in  some  secure  bay 
and  to  be  i)artially  unrigged,  whilst,  at  the  same  time,  the  furnaces, 
etc.,  required  for  making  the  oil  are  placed  on  shore.  The  little  cut- 
ter is  then  rigged  and  manned  with  about  half  the  crew,  who  sail 
about  the  neighboring  islands,  and  send  a  few  hands  on  siiore  when 
they  see  seals,  or  where  they  wish  to  watch  for  them.  This  vessel  can 
hold  about  two  hundred  seals  rudely  cut  up,  which  will  yield  about 
100  barrels  of  oil.  This  is  transported  to  the  headquarters  and  melted. 
The  campaign  freiiuently  lasts  for  three  years,  and  in  the  midst  of 
unheard  of  privations  and  dangers.  8ome  of  the  crew  are  sometimes 
lett  on  distant  barren  spots,  and  the  others  being  driven  off  by  storms, 
they  are  left  to  perisu  or  drag  out  for  years  a  most  prov  prions  and 
wretched  existence. 

This  evidence,  from  the  highest  English  and  French  a.Mnrities,  was 
stated  to  the  scie:  tiflc  world  more  than  fifty  years  ago,  as  a  plea  for 
the  preservation  of  these  valuable  and  docile  animals.  If  we  calculate 
the  values  they  would  have  added  to  commerce,  had  Great  Britain 
and  the  United  States  then  agreed,  as  they  do  now,  to  adopt  regula- 
tions for  their  protection,  we  must  reproach  ourselves  if  this  Tribunal 
is  not  now  equal  to  this  important  duty  and  if  the  regulations  we  adopt 
are  not  effectual  to  stop  this  great  wrong. 


116 


mi 


The  following  papjes,  275,  27G,  and  277,  contain  a  description  of  fur- 
seals  in  the  Antarctic,  taken  from  the  writings  of  Capt.  Weddell: 

Nothing  regarding  the  fur  seal  is  more  astonishing  than  the  dispro 
portion  in  the  size  of  tiie  male  and  female.  A  large  grown  male,  from 
the  tip  of  the  nose  to  the  extremity  of  the  tail,  is  0  feet  9  incites,  while 
the  female  is  not  more  tlian  '6.\  feet.  This  class  of  the  males,  however, 
is  not  the  most  numerous,  hut  being  physically  the  most  {towerfiil  they 
keej)  in  their  possession  all  the  females  to  the  exclusion  of  the  younger 
branches;  hence,  at  the  time  of  parturition,  the  males  attending  the 
femnles  may  be  comi»iited  as  one  to  twenty,  which  shows  this  to  be, 
perhaps,  the  most  i)olygamous  of  large  animals. 

They  are  in  their  nature  c(  nipletely  gregarious;  but  they  flock 
together  and  assemble  on  the  coast  at  dilVerent  periods  and  iu  dis- 
tinct classes.  The  males  of  the  largest  size  go  on  shore  about  the 
middle  of  November  to  wait  the  arrival  of  the  females,  who  of  necessity 
must  soon  follow  for  the  purpose  of  bringing  forth  their  young.  These 
in  the  eaiiy  i)art  of  December  begin  to  lainl,  and  they  are  no  sooner  out 
of  the  water  than  they  are  taken  possession  of  by  the  males,  who  have 
many  scions  battles  with  each  other  in  ]>r()curing  their  res])ective 
seraglios  and  by  a  peculiar  ii>stiiict  they  carefully  i)rotect  the  females 
niider  their  charge  (luring  the  whole  pe;io<l  of  gestation.  By  the  end  of 
J).'cemlter  all  the  female  seals  have  accomplish  the  pn.rpuse  of  their  land- 
ing. The  time  of  gestation  may  be  considered  iiciirly  tweive  mo.  ths.  and 
tliey  seldom  have  more  than  one  at  a  time,  .hich  they  suckle  and  rear 
api>areMtly  with  great,  affection.  By  the  middle  of  February  the  young 
arc  able  to  take  to  the  wjiter,  and  alter  being  taught  to  swim  by 
the  mother  they  abandon  theia  on  the  shore,  where  they  remain  till  their 
coats  of  fur  and  hair  are  completed.  During  the  latter  c:!d  of  February 
what  are  (tailed  the  dog  se.ils  go(m  shore;  these  are  the  young  seals  of 
the  two  preceding  years,  and  such  males  as,  from  the  want  of  age  and 
sti  ength,  are  not  allowed  to  attend  the  pregnant  females.  These  young 
seals  eonie  on  sht)re  for  the  purpose  of  renewing  their  annual  coats, 
which  being  done  by  the  end  of  April  they  take  the  water,  and  scarcely 
any  are  seen  on  shore  again  till  the  end  of  June,  when  some  young 
males  come  up  and  go  off  alternately.  They  continue  to  do  this  for  six 
or  seven  weeks,  and  the  shores  are  tlien  again  abandtmed  till  the  end  of 
August,  when  a  herd  of  small  young  seals  of  both  sexes  come  on  shore 
for  abtmt  five  or  six  weeks,  and  tlien  retire  to  tiie  water.  The  large 
male  seals  tsike  up  their  ])la(es  on  shore,  as  has  been  before  described, 
whicli  completes  the  intercourse  all  classes  have  with  the  shore  during 
tlie  whole  year.  The  young  are  at  llrst  bhu^k;  in  a  few  weeks  they 
become  gray,  and  soon  alter  obtain  their  coat  of  hair  and  fur. 

When  these  South  Shetland  seals  were  first  visited  they  had  no 
apprehension  of  danger  from  meeting  men;  in  fact,  they  would  lie  still 
while  their  neighbors  were  killed  and  skinned;  but  latterly  they  had 
accjuired  habits  for  counteracting  danger  by  i)lacing  themselves  on 
rocks,  from  which  they  could  in  a  moment  precipitate  themselves  into 
the  water.  The  agility  of  this  creature  is  almost  greater  than,  from  its 
ai>pearance,  an  observer  would  anticipate.  I  have  seen  them,  indeed, 
olten  escape  from  men  running  fast  in  pursuit  to  kill  them. 

These  statements,  collated  in  volume  12  of  the  Naturalist's  Library, 
which  Lord  Hannen  tells  us  is  a  standard  work,  were  written  about 
1820  to  1830,  and  some  of  them  earlier,  by  the  most  scientiflo  natural- 


117 


on  of  far- 
dell: 

lie  dispro 
nale,  from 
lies,  wliile 
,  however, 
?erful  tliey 
le  younger 
Sliding  the 
this  to  be, 

they  flock 
md  iu  dis- 
nbout  tlie 
if  necessity 
ng.     These 
)  sooner  ont 
<,  who  hiive 
ies])eetive 
the  females^ 
y  the  end  of 
Vtlieir  land- 
no.  ths.  and 
vie  and  rear 
y  the  young 
to  swim  by 
ain  till  their 
)f  February 
ung  seals  (»t' 
of  age  and 
hese  young 
linual  coats, 
nd  scarcely 
,(»me  young 
this  for  six 
1  the  end  of 
nie  on  shore 
The  large 
le  described, 
ihore  during 
weeks  they 
ur. 

ley  bad  no 
louldlie  still 
ly  they  had 
in  selves  on 
luselves  into 
[lan,  from  its 
jiem,  indeed, 

it's  Library, 

ritten  about 

liflo  natural- 


ists who  gathered  the  facts  from  personal  observations.  They  relate  to 
the  same  race  of  fur-seals  at  the  antipodes  that  we  are  inquiring  about 
in  this  case. 

These  able  scientists  enter  minutely  into  all  the  characteristics  of  the 
fur-seals  and  other  carnivorous  amphibia  and  give  exact  descrii)tiniis 
of  their  actual  and  comparative  anatomy.  Their  accounts  fuinish 
accurate  data,  iu  strong  contrast  with  the  guessing  and  conjectures  of 
the  tyros,  many  of  them  without  inevious  experience,  who  were  sent 
out  to  make  a  brief  and  necessarily  superficial  study  of  the  I'ribilof 
herd,  chiefly  with  a  view  to  bolster  up  special  theories  that  are  made 
the  bases  of  the  contentions  that  the  Tribunal  is  now  examining. 

Although  these  books  were  written  more  than  a  half  century  ago, 
they  are  as  accurate  as  a  photograph  as  to  the  physical  characteristics 
and  tlie  habits  of  the  fur-seals  of  the  ^'orth  Pacitic,  and  show  that  tliey 
are  exactly  now  what  the  saiue  species  was  one  hundred  years  ago  in 
the  South  Pacific  Ocean. 

I  rely  upon  these  exact  and  scientific  statements  of  these  learned  and 
trained  naturalists  to  clear  up  the  doubts  and  reconcile  or  remove  the 
conflicting  conjectures  of  the  numerous  witnesses  in  this  case  who  dis- 
agree chiefly  because  they  are  not  well  informed  as  to  the  subject.  In 
the  matter  of  the  virility  of  the  harem  masters,  the  alleged  barrenness 
of  cows  killed  iu  July,  August,  and  September,  and  Mie  possible  dis- 
eases that  may  have  swept  off  large  numbers  of  puj/.s  on  the  island, 
opinions  are  advanced  with  bold  freedom  by  men  whose  opinions  are 
not  entitled  to  any  weight  whatever.  I  do  not  remember  that  any  one 
of  the  many  statements  of  the  hundreds  of  witnesses  who  speak  so 
confidently  on  these  subjects  is  based  either  upon  actual  skill  or  actual 
examination,  by  dissection  or  in  any  practical  way,  of  the  characteristics 
of  fur-seals.  All  the  evidence  shows  that  the  breeding  cows  are  fer- 
tilized within  a  few  days — about  ten  days — after  parturition,  and  that 
until  that  is  accomplished  the  harem  masters  control  tlieir  movements 
with  the  most  jealous  care,  and  none  of  them  are  permitted  to  go  into 
the  sea  until  they  Jire  impregnated.  They  then  set  out  to  get  food  to 
nourish  the  pups  they  have  borne,  carrying  in  their  bodies  the  living 
germ  of  the  next  creation.  In  these  early  day.s  the  fact  of  fertilization 
is  not  discernible  even  on  close  exauunatioi!  co  the  unskilled  eye;  yet 
such  examinations  were  not  made,  and  these  seal-hunters  and  so  called 
professors  unhesitatingly  testify  that  a  cow  seal,  having  milk  in  her 
breasts,  is  barren  because  ther€>  were  no  external  signs  that  she  was 
gravid  with  young. 


118 

And  so  it  is  in  respect  of  the  virility  of  the  bulls,  a  fact  that  would 
l)iobabl.y  defy  the  most  exact  scieiitiflc  examination  to  prove,  is  stated 
with  sublime  confidence  by  Prof.  Elliott  and  other  like  guessers.  He 
finds  the  bulls  at  peace  on  the  rookeries,  and  though  they  are  not 
irritated  by  being  crowded  together  as  formerly,  he  concludes  that 
because  they  have  their  domestic  enjoyments  without  the  necessity  of 
jeahms  warfare  that  tliey  have  lost  their  virility.  Among  all  polyg- 
amous animals  endowed  with  fighting  ca])acity  nature  provides  for 
destroying  the  excess  of  males  by  the  wars  they  wage  upon  each  other. 
Breeders  of  animals  reach  this  result  without  the  necessity  of  permit- 
ting them  to  light  and  kill  each  other.  It  requires  very  simple  reason- 
ing to  reach  the  conclusion  that,  if  this  waste  of  physical  energy  is 
saved  to  breeding  males  by  tlieir  separation  from  each  other  and  the 
suppression  of  their  warfare,  that  it  will  supply  the  virility  to  meet  a 
greater  demand  upon  their  powers  of  procreation. 

No  dissections  seem  to  have  been  made  of  dead  pups  found  on  the 
islands  on  one  occasion  to  ascertain  whether  they  had  died  of  starva- 
tion or  of  disease,  or  were  swept  off  by  tempests  and  drowned  and 
were  thrown  upon  the  coasts  in  "  winrows"  by  the  waves  of  the  sea. 
Yet  each  witness  gives  his  opinion  as  to  what  killed  the  pups  with  as 
nnu'h  coulidence  as  if  he  really  knew  wliat  he  was  talking  about. 

The  eft'ort  to  account  for  the  disjjarity  of  81,000  killable  seals  on  the 
islands  between  1880  and  1890  by  any  of  these  mere  (conjectures  is 
fjuuded  uiion  this  wSortof  testimony  and  can  not  break  the  force  of  the 
fact  that  in  1800  the  ])elagic  hunters  got  51,055  seals,  while  on  the 
islands,  Avhere  102,(il7  killable  seals  were  taken  in  18S0,  only  21,2;58 
could  be  found  the  next  season  "by  scraping  the  rookeries,"  as  Lord 
Ilannen  observed. 

The  crucial  test  of  the  necessity  of  forbidding  ])e]agic  sealing  with 
fireaiins  in  parts  of  the  ocean  where  seals  abound  is  the  fact  that  it 
results  necessarily  and  without  doubt  in  the  killing  of  great  numbers 
of  female  seals,  because  of  their  disposition  to  sleep  when  gravid. 
Tliey  are  more  easily  approached  than  the  males,  and  the  result  is  tlie 
dc^^truction  of  a  much  laiger  pr(»portion  of  females  than  of  males. 
The  encouragement  of  this  indiscriminate  killing  of  females,  or  its  tol- 
eration, will  establish  a  practice  that  violates  every  idea  of  the  protec- 
tion and  i)reserA'ation  of  the  s])ecies.  It  legitimates  a  war  upon  the 
race  that  cau  not  be  restrained. 

If  we  first  deny  to  this  race  of  valuable  and  docile  animals  (that  have 


119 


lat  would 
,  is  stilted 
sers.    He 
y  are  not 
lules  that 
scessity  of 
all  polyg- 
ovides  tor 
sacli  other, 
of  permit- 
pie  reason- 
energy  is 
ler  and  the 
y  to  meet  a 

mnd  on  the 
1  of  starva- 
rowned  and 
\  of  the  sea. 
ups  with  as 
about. 

eals  on  the 

njectures  is 
Iforce  of  the 

lile  on  the 
loiily  21,2158 

s,"  as  Lord 

tealing  with 
fatt  that  it 
tit  numbers 
Ml   giavid. 
Result  is  tlie 
of  males. 
|s,  or  its  tol- 
the  protec- 
|ar  upon  the 

1  (that  have 


less  dread  of  the  presence  of  man,  whether  on  land  or  sea,  than  any 
other  animal  that  is  classed  as  a  wild  animal)  all  the  protection  that 
the  law  gives  to  animals  that  are  domesticated,  and  for  no  other  end 
than  to  protect  the  merely  technical,  cruel,  and  unrelenting  claim  of 
rights  by  its  worst  enemy,  the  i)elagic  sealer,  we  should  never  take  to 
ourselves  the  credit  of  protecting  and  i)reserving  them.  When  we  arm 
those  enemies  with  double-barreled  shotguns,  witli  cylinder  cartridges 
charged  with  buckshot,  and  turn  them  in  upon  the  lierd  to  kill  tliem 
indiscriminately  after  they  have  congregated  in  great  numbers  and 
are  making  their  way  to  their  only  place  of  resort  for  the  purposes 
of  procreation,  we,  their  only  protectors,  become  their  destroyers. 
This  is  not  a  liypothectical  case  or  an  exaggerated  statement,  but  is 
the  simple  and  undeniable  truth. 

This  Tribunal,  by  such  a  decree,  will  deny  to  the  fur-seal  species,  all 
over  the  world,  that  protection  which  themunicii^al  law  has  always  freely 
and  even  eagerly  extended  to  all  harmless,  docile,  and  useful  animalsthat 
are  valuable  to  man  for  food  and  raiment.  We  will  put  upon  them  the 
ban  of  outlawry  only  because  they  must  go  into  the  sea  for  food,  and 
because  they  do  not  need  U)  be  converted  from  their  natui'al  condition  or 
disposition  by  the  discipline  or  the  temptations  of  the  skill  of  man  that 
must  be  used  in  taming  savage  beasts.  Nature  having  disi)ensed  with 
all  necessity  for  such  inducements  and  manipulations  to  overcome  any 
aversion  of  the  fur-seals  to  the  dominion  of  man,  and  having  delivered 
them  into  his  hands  as  a  free  gift,  to  be  used  at  his  pleasure  and  to 
meet  a  want  that  no  other  animal  can  supply,  the  law  steps  in  and 
declares  that  because  nature  has  done  this,  and  has  so  placed  it  out 
of  man's  power  to  make  the  seals  any  more  docile  and  tame  by  induce- 
ments aiul  manipulations  than  they  are  by  nature,  the  fur-seals  can 
never,  as  a  class,  become  domestic  or  domesticated  animals,  and  can 
receive  no  legal  protection  in  the  sea.  They  are  lorever  excluded  on 
such  grounds  frou)  the  legal  possibility  of  domestication,  and  are  handed 
over  to  the  most  formidable  enemy  that  ever  hunted  any  animal,  tame 
or  wild,  doomed  to  inevitable  dcvstruction. 

I  dissent  from  such  opinion  as  being  contrary  to  the  laws  of  God  and 
the  often-expressed  legislative  intentions  of  man;  but  I  yield  to  it  as 
the  sincere  judgment  of  this  Tribunal,  and  refer  to  it  to  show  how  mxich 
ijrcater  is  the  necessity  note  resting  upon  this  Tribunal  in  the  iim\)lit\n\ii  of 
its  powers  supplied  to  them,  for  this  occasion  and  for  that  purpose,  to  afford 
substantial  2>rotcction  for  the  preservation  of  the  species.    I  will  explain 


120 


I' 


my  meaning  when  I  say  that  the  outlawry  of  the  fur-seal  species  is  con- 
trary to  the  laws  of  God.  Hundreds  or  thousands  of  years  ago  these 
animals  and  the  Aleuts  were  brought  in  contact  by  the  directing  hand 
of  Providence  along  the  shores  and  on  the  islands  of  Bering  Sea. 
No  tree,  no  fruit,  or  grain,  or  grass,  or  cattle  were  there  to  sup- 
])ort  human  life;  but  men  were  there,  who  subsisted  on  these  fur  seals 
and  were  clothed  in  their  skins.  This  was  nearly  the  only  food  and 
raiment  they  could  obtain  in  a  climate  as  inhospitable  and  in  a  country 
as  rugged  and  dreary  as  any  on  the  habitable  globe. 

Only  one  hundred  and  fifty  years  ago,  a  powerful  nation,  Russia, 
came  with  her  great  ships  and  armaments  and  took  the  country  and 
the  people  and  the  seal  herds,  by  right  of  discovery,  and  supported  its 
right  by  the  title  known  to  the  law  of  nations  as  title  by  discovery — a 
most  tyrannical  and  fraudulent  maxim  of  international  law  which  the 
civilized  world  has  now  practically  abandoned.  If  this  had  never  been 
done,  the  Aleuts  would  now  be  the  owners  and  rulers  of  that  country; 
and  the  question  we  are  now  discussing  would  be  whether,  under 
international  law  as  it  is  now,  the  food  and  raiment — the  only  valuable 
resource  of  these  poor  and  helpless  people — could  be  taken  by  any  great 
l)ower  and  the  people  left  to  perish.  In  that  case  the  consensus  of  the 
civilized  powers  would  be  that  those  animals  should  be  considered  the 
property  of  the  Aleuts,  the  owners  of  the  breeding  islar.ds,  and  when 
they  left  the  coasts  with  the  intention  to  return  and  visited  the  ocean 
for  food,  that  they  should  at  least  be  attended  with  the  protection  that 
is  given  by  the  law  of  all  civilized  nations  to  domesticated  animals. 
This  is  the  law  of  God,  who  first  gave  these  animals  to  those  northern 
tribes  and  made  them  the  staff  of  life  to  them  by  reason  of  their  docil- 
ity, the  regularity  of  their  coming  into  the  service  of  those  people,  and 
their  com])lete  submission  to  that  service. 

That  law  is  not  changed  because  the  United  States,  a  powerful  and 
wealthy  nation,  has  assumed  to  make  provision  for  these  people  while 
lilting  them  into  a  higher  civilization  and  finds  in  the  fur-seals  the  reve- 
nue that  is  needed  for  tiiese  purposes.  For  more  than  one  hundred 
years  Great  Britain  and  her  subjects  have  known  the  fact  that  Russia 
and  the  United  States  have  made  these  fur-seals  the  basis  of  a  valuable 
industry;  a  means  of  providing  for  the  Aleuts;  an  instrumentality  of 
government;  and  almost  the  only  source  of  revenue  that  country  pos- 
sessed. It  w^as  not  until  1876  that  any  i)e]agic  sealer  entered  Bering 
Sea,  and  that  was  a  United  States  vessel  that  was  captured  and  con- 
fiscated by  that  Government. 


121 


;8  is  con- 
go  tlieso 
iug  hand 
ing  Sea. 
1  to  sup- 
fur  seals 
food  and 
a  country 

1,  Russia, 
intry  and 
iported  its 
icovery— a 
wbicli  tlie 
never  been 
it  country, 
her,  under 
[y  valuable 
y  any  great 
lusus  of  the 
sidered  the 
and  when 
I  the  ocean 
;ection  that 
;d  animals, 
se  northern 
their  docil- 
people,  and 

)\verful  and 
leoplo  while 
lis  the  reve- 
ne  hundred 
that  Kussia 
a  valuable 
lentality  of 
iountry  poa- 
(red  Bering 
Id  and  con- 


The  seal  hunters  had  depopulated  the  Antarctic  Ocean  of  ftir-soals, 
and  had  made  many  successful  raids  on  the  islands  and  coasts  of 
Jai)an.  Their  poaching  grounds  had  been  exhausted  and  the  hope  of 
great  profits  drew  them  to  Bering  Sea.  They  found  goveriinnMitnl 
resistance  in  Japan,  Russia,  and  the  United  States,  but  they  found  in 
Canada  a  Government  that  would  give  countenance  to  their  raids,  and 
despite  the  best  efforts  of  the  United  States  and  Great  Britain,  and  of 
their  ordinances  closing  Bering  Sea  to  them,  they  now  swarm  upon 
the  known  route  of  the  migration  of  the  seals,  which  they  follow  with 
immense  fleets.  It  was  this  sudden  and  dangerous  movenient  that 
caused  these  nations  to  agree  that  this  Tribunal  should  settle  tlie  ques- 
tions that  stood  in  the  way  of  concurrent  action  between  these  Govern- 
ments; and  should  then  determine  regulations  for  the  proper  protection 
and  preservation  of  the  fur  seals  in  the  Avater,  and  not  regulations  to  be 
provided  for  the  protection  of  the  pel.agic  hunters,  who  are  tlie  only 
human  destroyers  of  the  fur-seals  that  can  not  be  otherwise  comi)Ietely 
restrained. 

If  we  will  take  a  correct  view  of  the  number  and  the  power  of  these 
destroyers  we  shall  see  in  the  dang*^rous  aggregation  of  those  enemies  a 
demand  that  we  can  not  reasonably  resist  for  pre  enting  them  from 
destroying  the  fur-seals  placed  under  our  protection  by  this  treaty. 
In  view  of  the  very  heavy  forces  that  arc  and  have  been  marslialled  for 
this  ruinous  purpose,  and  that  are  really  invited  to  increase  their  nnni- 
bers  and  strength  by  the  regulations  ottered  for  our  adoption  on  behalf 
of  Great  Britain,  we  shall  find  a  just  and  sufficient  reason  for  tirm 
action,  without  being  left  to  conjecture  upon  a  meager  statement  of 
facts,  and  abundant  statements  of  loose,  ignorant,  muddy,  conflicting, 
and  partial  opinions  as  to  how  much  wanton  and  needless  injury  lias 
already  been  done  to  seal  life,  and  in  what  months  of  the  year  it  lias 
been  done. 

In  1892,  the  sealing  fleet  in  the  North  Pacific  Ocean  numbered  122 
vessels,  09  of  which  were  under  the  British  flag,  and  53  under  the  flag 
of  the  United  States.  No  other  nations  were  participating  in  the  hunt. 
AUowing  to  each  vessel  8  sealing  boats,  though  none  had  less  than  />, 
and  many  of  them  had  15,  there  were  976  boats.  There  could  not  have 
been  less  than  1,000  boats.  Giving  to  each  boat  a  hunter  and  oarsman, 
there  were  2,000  men  employed  in  hunting.  They  also  had  the  ship 
and  its  crew  as  a  base  for  supply  of  ammunition  and  provisions,  and  to 
give  assistance  in  skinning  the  seals  after  hoisting  them  into  the  ship, 


122 


and  in  disposing  of  the  carcasses  and  salting  and  stowing  the  pelts. 
These  crews,  allowing  10  men  and  oflicers  to  each  vessel,  though  the 
numbers  were  much  greater,  numbered  1,220;  in  all,  3,220  men,  I 
l)lace  this  estimate  below  that  of  both  Governments  because  I  believe 
that  is  a  full  allowance  of  the  men  needed,  and  this  business  requires 
no  great  investment  of  capital  to  make  it  profitable. 

Kach  hunter  has  a  rifle,  and  a  double-barreled  shotgun,  and  takes 
100  rounds  of  ammunition  on  each  excursion  from  the  ship,  which  he 
usually  expends  in  a  day's  work.  The  guns  are  breech-loading,  rapid- 
firing-  weapons,  and  have  fixed  auimunition,  made  waterproof;  and  are 
fired  by  the  impact  of  the  hammer  upon  an  explosive  that  is  fixed  in 
the  base  of  each  cartridge.  The  powder  and  the  explosive  for  igniting 
it  are  cliarged  into  a  copper  cup  or  cylinder  that  forms  the  base  of  the 
cartridge,  and  the  lead  is  imbedded  in  the  cylinder,  in  front  of  the 
powder.  A  slight  flange  around  the  exterior  of  this  cylinder  at  its 
base  prevents  its  escape  from  the  gun  in  firing,  and  when  it  is  emptied 
a  very  simple  contrivance  removes  the  shell  from  the  breach  of  the  gun. 
Fifteen  buckshot,  each  a  deadly  missile,  is  usually  the  charge  of  lead 
placed  in  each  cylinder  cartridge,  and  if  a  hunter  fires  100  shots  in  a 
day,  he  discharges  1,500  of  these  missiles  at,  or  into,  tlie  seals. 

In  10  days  of  good  sealing  in  the  North  Pacific  out  of  00,  the  single 
hunter  would  fire  15,000  deadly  shots  at  close  range;  and  in  15  days 
out  of  90,  in  the  Bering  Sea,  he  would  fire  22,50()  deadly  missiles  at  or 
into  the  seals,  even  under  the  more  apparently  forbearing  and  humane 
sc'liome  of  regulations  offered  by  Sir  John  Thompson,  But  under  the 
British  scheme  his  opportunities  would  be  much  greater.  In  a  scal- 
ing campaign  of  two  months  in  the  North  Pacific  and  tliree  months  in 
Bering  Sea — continuous  months — the  single  hunter,  during  twenty-five 
days  of  good  sealiug  out  of  one  huiulred  and  fifty-three  days  (Sundays 
included),  would  fire  at  find  into  the  seals  37,500  deadly  cartridges. 
One  hunter  with  that  opportunity,  if  he  was  moderately  skilled  in 
shooting  seals,  would  destroy  2,000  or  more  seals  in  153  days  of  hunt- 
ing. 

It  is  idle  to  suppose  that  out  of  153  days  of  hunting  he  would  not 
find  25  days  of  good  sealiug,  in  which  he  would  fire  100  shots  each  day. 
The  average  for  the  entire  period  would  be  24  shots  each  day  for  each 
hunter.  Now  multiply  these  figures  by  the  number  of  hunters  in  the 
entire  fleet  of  122  vessels — 907,  and  in  the  25  days  of  good  sealing 
weather  out  of  the  153  days  spent  in  the  North  Pacific  and  Bering 


123 


;he  pelta. 
ougb  the 
men.  I 
I  believe 
3  requires 

md  takes 
,  wliich  he 
ing,  rapid- 
f;  and  are 
is  fixed  in 
t)r  igniting 
)ase  of  the 
ont  of  the 
ider  at  its 
is  emptied 
of  the  gun. 
irgo  of  lead 

0  shots  in  a 
lals. 

I,  the  single 

1  in  15  days 
issiles  at  or 
lud  humane 

under  the 
In  a  soal- 
|e  months  in 
twenty-five 
s (Sundays 
cartridges, 
skilled  in 
,ys  of  hunt- 
would  not 
Its  each  day. 
lay  for  each 
Inters  in  the 
jood  sealing 
land  Bering 


Sea.  they  would  fire  at  and  into  the  seals  3,550,824  cartridges,  each 
loaded  with  15  buckshot,  all  deadly  missiles,  and  numbering  53,262,360. 

Now,  let  us  suppose  that  three  fourths  of  tliese  shots  failed  to  hit  the 
seals  and  that  only  half  of  the  number  that  hit  them  either  killed  the 
seals  or  wounded  them  mortally,  and  we  expose  this  herd  of  seals  to 
an  annual  loss  of  443,853  seals  at  the  very  lowest  possible  estimate 
and  upon  a  basis  of  facts  that  no  one  can  safely  dispute.  This  shows 
that  not  more  than  one  seal  is  taken  out  of  every  five  seals  shot.  This 
seal  herd  in  its  present  depleted  condition  can  not  continue  to  exist  if 
half  that  number  of  seals  is  taken  from  it  in  each  of  the  years  from 
1894  to  the  end  of  the  century.  And  if  the  percentage  of  female 
seals  killed  is  equal  to  two-thiids  or  even  half  the  whole  number,  the 
si)eed  and  certainty  that  must  attend  the  destruction  of  the  herd  will 
be  very  greatly  increased  under  the  plan  of  Sir  John  Thompson. 

If  we  expect  that  a  less  number  of  vessels  will  hereafter  assemble  for 
seal  hunting  than  came  in  1892,  on  what  ground  can  we  safely  base 
such  a  conjecture? 

The  skins  of  seals  are  worth  $10  apiece;  they  were  worth  that  uuu^h 
in  1821,  and  if  the  average  catch  of  each  vessel  is  only  250  for  five 
months,  or  50  seals  a  mouth,  it  is  a  very  large  earning,  and  it  leaves 
lialf  the  year  for  other  voyages.  If  the  attack  on  the  seals  is  pei  mitted 
when  they  are  herded  together  in  Bering  Sea  in  one  vast  body,  or 
wlien  traveling  in  large  parties  uj)  the  Pacific  coast,  the  limiting  of 
the  hunting  season  to  a  brief  period  will  only  increase  the  astivity  of 
the  pelagic  sealers,  and  as  nmch  killing  will  be  done  with  200  'essels 
in  one  month  as  would  be  done  with  100  in  two  months,  if  the  open 
season  was  two  months  instead  of  one.  We  could  no  more  safely 
assume  that  tlie  sealing  fieet  in  1894  or  1895  will  not  exceed  the  luimber 
assembled  in  1892  than  we  could  have  assumed  in  187(5  tiiat  i)elagic 
hunting  would  be  limited  to  a  single  vessel  and  could  not  po.ssildy 
reach  the  number  of  122  vessels  by  the  year  1892.  The  experience  of 
the  last  seventeen  years  on  this  subject  is  not  to  be  disregarded. 
It  is  a  living  lesson  of  truth  that  the  legerdemain  of  minor  and  astute 
calculations  can  not  conceal  under  a  cloud  of  dcmbt.  The  fact  remains 
that  in  the  year  1892,  122  vessels  assembled  in  the  JNctli  I'acific  and 
took  73,394  skins  of  dead  animals,  killing  or  fatally  wounding  at  least 
twice  that  number — 146,78b — in  all,  220,182  seals,  of  which  two  thirds 
were  females,  numbering  14(5,794. 

There  can  be  but  little  doubt,  on  .all  the  evidence,  that  the  number 


ii     r. 


124 

of  femnlc  seala  killed  and  woniuled  was  more  than  double  the  nnmbor 
of  skins  tliat  were  taken.  There  is  also  as  little  doubt  that  two  thirds 
of  the  females  killed  or  fatally  wounded  were  gravid,  and  on  their  way 
to  tlni  islands  to  be  delivered  of  their  young;  and  cnch  seal  in  that 
(•oiidition  was  tiien  therepositoryof  two  lives  that  were  thus  destroyed; 
the  uid)orn  pups  being  99,802. 

'I'll is  iininbur,  milling  thn  niiinhur  taknn 73,  304 

Aiul  tli((  nimilxT  killed  iMiil  woiindod,  but  not  taken 220,  182 

And  lliu  unborn  {lupH  ul'  tbo  14U,7D4  feuialuB  killed  or  futullj  wounded 9U,  8ti2 

Givesa  totiil  of 393.438 

How  can  it  be  said  that,  on  the  evidence  in  this  case,  this  is  not  a 
true  and  safe  estimate  of  the  result  of  the  W(>rk  of  destruction  wrought 
by  122  sealing  vessels  in  1892,  in  the  North  Paciiie  while  they  were 
limited  to  those  waters  by  the  modus  vivendi  of  1891  f 

Reduce  this  estimate  if  you  will  by  one-half  and  make  it  only 
19(J,714  seals  of  all  coiulitions  and  sexes  that  are  killed,  and  the  num- 
ber destroyed  is  nearly  twice  as  great  as  the  number  of  seals  that 
were  killed  and  recovered  in  1892.  Until  these  facts  are  changed  or 
expunged  from  the  record,  I  can  lind  no  occasion  for  examining  in  this 
opinion  the  minor  details  that  relate  to  otiier  seasons.  These  facts, 
if  they  are  to  be  repeated  iiidetiuifcely,  destroy  all  hope  of  preserving 
these  seals. 

The  year  1892  with  its  actual  experiences  stands  netircpt  to  1893,  and 
is  the  safest,  as  it  is  the  most  complete,  guide  to  the  truth  of  the  situ- 
ation. I  therefore  take  that  year,  with  its  ascertained  facts  and 
results,  as  the  chief  basis  of  my  objections  to  the  schemes  of  regu- 
lations proposed  by  Great  Britain  sind  departed  from  and  modified,  but 
scarcely  improved,  by  the  plan  of  Sir  John  Thompson. 

That  Sir  John  has  found  it  necessary  to  depart  from  the  British 
proposals  is  a  grave  concession,  especially  in  the  point  so  earnestly 
contested  by  Great  Britain,  that  this  Tribunal  has  no  jurisdiction  out- 
side of  Behring  Sea.  He  proposes  a  zone  of  absolute  prohibition  of 
pelagic  sealing  of  10  miles  arouiul  the  Aleutian  Islands. 

In  considering  regulations  as  they  may  be  shaped  and  modified  by 
other  considerations  than  the  method  that  will  best  protect  and  pre- 
serve the  particular  class  of  fur-seals  placed  under  the  protection  of 
this  Tribunal  by  the  treaty  (if  we  are  to  take  such  liberties  with  our 
powers),  the  Tribunal  nust,  in  justice,  examine  into  the  rights  of  the 
pelagic  sealers  of  the  United  States,  in  the  Pacific  Ocean  and  in  Ber- 


125 


number 
o  thirds 
loir  way 
in  tluit 
stroyed ; 

..  73,394 
..  220,182 
..  «y,862 

..  393,438 

is  not  a 
wrought 
bey  were 

)  it  only 
tlie  nuin- 
culs  tlisit 
langed  or 
iig  in  this 

[CSe   l'il(!t8, 

reserving 

1893,  and 

the  situ- 

iicts  and 

of  regu- 

ified,  but 

le  British 

learnestly 

•tion  out- 

hbitiou  of 

Idificd  by 

and  pre- 

tection  of 

Iwith  our 

Its  of  the 

in  Ber- 


ing Sea,  aa  they  will  bo  when  the  statntos  of  the  Unifod  States  shall 
l)crniit  tiioin  to  enter  witli  the  Canadians  and  also  witli  the  people  of 
other  nations  into  tluit  liaivest  Hold,  and  to  have  eiiual  rights  in  tlie 
spoils  that  wo  are  asked  to  place  within  tlieir  reaeli. 

Although  we  have  not  yet  considered  the  British  case  on  its 
merits,  wltieh  covers  oidy  the  (thiiin  of  right  to  unlimited  and  un- 
controlled pelagic  sealing,  and  have  oidy  ttonsidcred  the  objertions 
to  the  case  of  the  United  States  that  are  stated  in  the  British  counter 
case,  I  must  assume  that  tlie  citizens  and  subjects  of  the  res|>eelivo 
Governments  everywhere  on  the  high  seas  are  to  have  e(iual  rights 
and  privileges.  If  it  is  the  right  anil  [nivilege  of  the  pelagic  sealers  of 
Canada  to  waylay  the  seals  in  May  and  June  at  Unimak  Pass  or  any 
otiier  pass,  and  in  July,  August,  and  Sej)tember  to  waylay  them  in 
Bering  Sea  near  the  passes  or  near  the  breeding  islands,  the  same 
right  must  be  accorded  to  the  citizens  of  the  Unitecl  States  who  for 
personal  gain  choose  thus  to  violate  the  declared  public  policy  of  thcii' 
Government. 

If  it  must  be  that  this  Tribunal  will  inflict  upon  the  United  States 
the  double  indignity  of  having  her  wise  and  honorable  policy  of 
preserving  the  fur-seal  species  disregarded  by  her  own  people,  under 
the  suggestions  of  the  award,  and  of  requiring  tlie  concurrent  action 
of  Great  Britain  in  the  priiu'-iples,  if  not  in  all  the  d(!lails  ((f  laws  and 
of  administration,  in  guarding  the  proposed  .'{() mile  zone  against  intru- 
sion by  citizens  of  the  United  States,  we  should  at  least  be  careful 
to  protect  the  United  States  against  a  detinition  of  the  rights  and 
powers  of  pelagic  sealers  that  is  so  radi<!al  as  to  break  down  the 
admitted  rights  and  principles  of  self  defense. 

The  same  necessity  does  not  exist  for  guarding  Groat  Britain  with 
protective  regulations,  because  no  pelagic  hunting  is  done  within  thou- 
sands of  nules  of  any  place  where  she  has  any  sealing  industry,  and 
the  interest  of  the  pelagic  hunters  is  in  accordance  with  her  present 
policy  of  giving  them  free  rein  in  the  destruction  of  fur-seals  if  they  can 
make  any  money  by  the  operatiou,  as  her  policy  is  now  disclosed  in  the 
regulations  she  has  smbmitted. 

As  to  citizens  of  the  United  States  who  would  be  thus  encouraged 
by  such  an  award  policy  to  raid  upon  the  industries  and  revenues  of 
their  Government  during  five  months  of  the  year  and  tx)  defy  its  public 
policy,  it  may  turn  out  that  the  United  States  will  abandon  them  to 
their  own  devices  for  protection  while  they  are  engaged  in  this  selfish, 
cruel,  and  uniiatriotic  work. 


126 


li: 


And  licre  romes  to  view  the  most  danfjerous  and  difllcult  task  and 
tlu'  most  irritiiting  that  tlie  two  (JovernnicntH  will  have  to  jHTform  in  rog- 
ulatinj;  as  between  these  ju'lajfit;  scalers  tiielr  rights  while  they  are  piir- 
Hiiin;;  and  <5apturinff  fur-seals  with  double-barreled  shotguns.  The 
pelts  are  worth  $10  each,  a  much  larger  sum  than  is  the  aveiage  yield 
of  the  richest  gold  mine  jter  diem  to  the  gold  hunters;  and  we  know 
how  impossible  it  is  to  restrain  by  law  the  violence  that  Iuih  attended 
their  struggles  for  "diggings,"  where  none  of  them  own  the  soil  or 
any  privilege  in  it  except  to  discover  now  leads  and  to  dig  for  gold. 

On  the  high  seas  30  miles  or  more  from  any  land  there  are  no  courts 
and  can  not  be  any  efficient  police  by  either  or  both  nations.  Conced- 
ing to  tiiem  the  best  intentions  and  the  most  honorable  zeal  in  protect- 
ing the  rights  of  all  concerned,  they  will  fail  to  prevent  those  personal 
(KMiflicts  i)etweenthe  ravenous  pelagic  seahMs  around  the  30  mile  zone, 
especially,  which  in  the  end  will  embroil  the  two  countries. 

Th(>.  United  States,  as  I  have  observed,  may  not  choose  to  take  up, 
as  an  internatiomil  (luestion,  the  quarrels  of  her  citizens  with  Canadian 
subjects  while  they  are  both  engaged  iii  doing  a  great  national  wrong 
to  that  Government;  but  they  will  be,  naturally,  very  chary  of  the 
dealings  of  Great  Britain  with  such  controversies.  There  will  be  no 
international  court  for  the  hearing  of  su(!h  controversies  between 
private  persons  engaged  in  sealing  in  boats  and  canoes  on  the  high 
seas,  and  they  will  inobably  be  settled  by  the  vis  major.  The  fact  that 
both  i)arties  will  be  heavily  armed  for  assault  upon  the  seals  will  make 
such  collisions  very  dangerous,  and  their  occurrence  almost  certain. 

A  United  States  sealer  finds  a  school,  or  party  of  seals  and  go.es  to  the 
leeward  to  get  in  gunshot  of  them;  andaparty  of  Canadians  desiring  to 
kill  them,  approaches  the  seals  from  the  windward  and  shoots  one  with 
a  rille  before  the  other  hunter  can  get  in  range  with  his  shotgun.  A 
quarrel  ensues  and  results  in  bloodshed.  By  a  fiction  of  law,  th^;-  are 
each  upon  the  territory  of  their  respective  countries,  and  the  settlement 
of  that  case,  without  the  intervention  of  the  Governments,  would  tax 
the  wisdom  equal  to  that  of  Solomon.  If  one  sealer  in  his  boat 
shoots  at  a  seal  that  another  is  approaching  from  the  other  side, 
and  wounds  or  kills  the  hunter,  what  is  to  be  done  in  that  case? 
That  conflict  will  residt  from  such  occasions  is  almost  certain,  and  how 
it  can  be  settled  is  most  uncertain.  Illustrations  are  feeble  to  portray 
the  difficulties  and  conjectures  are  far  short  of  the  reality  as  to  the 
conflicts  that  must  occur  in  the  wild  hunt  for  seals  that  the  British 
regulations  invite. 


127 


task  ami 
m  in  log- 
!  are  i>ur- 
ns.    The 
ige  yield 
wo  know 
attended 
10  soil  or 
j>oUl. 
uo  oonrta 
Couced- 
n  proteet- 
B  personal 
mile  zone, 

0  take  up, 
Canadian 
dial  wrong 
iry  of  the 
will  be  no 
s   between 
n  the  high 
e  fact  that 
will  make 
certain. 
^o.es  to  the 
desiring  to 
;s  one  with 
lotgnn.    A 
^v,  th"--are 
settlement 
would  tax 
his  boat 
ither  side, 
Ithat  case? 
.,  and  how 
to  portray 
as  to  the 
;he  Britisl' 


Sir  John  Thompson  spoke  of  the  generosity  ol  the  British  Govern- 
ment in  treating  witli  the  United  States  for  the  preservation  of  the 
fur-se  .la.  There  was  as  much  geiu'nsity  on  one  side  as  on  the  other, 
and  none  on  either.  It  was  a  business  matter  relating  to  material  in- 
terests and,  I  nuiy  well  assert,  of  equal  importance  to  both  high  con- 
tracting powers,  which  took  its  origin  in  wl'  it  Sir  John  has  aptly  termed 
the  "bursting  in"  of  the  Canadians  into  Bering  Sea  in  1886.  It  was 
a  sndden  "bursting  in,"  and  had  the  appearance  of  a  violent  and  de- 
fiant experiment — a  raid.  Canada  and  the  United  States  since  1818 
have  had  numy  severe  contentions  over  the  fisheries  of  the  northeastern 
coast,  in  which  arrests  of  ships  and  of  persons  have  led  to  very  earnest 
iliscu.ssion.  The  United  States,  claiming  certain  treaty  rights  there, 
have  not  burst  into  any  of  the  waters  that  Canada  has  claimed  as  her 
fishing  preserve,  although  her  people  have  been  treated  there  with 
severe  inhospitality. 

That  Government  has  preferred  to  prevent  collision  and  strife  by 
restraining  her  people  from  bursting  into  places  where  they  believed 
that  their  rights  entitled  them  to  go.  It  was  an  easy  matter  for  Canada 
ti.  have  propounded  Its  claim  of  rights  to  the  United  States,  and  to  have 
!iau  them  decided  upon  without  permitting  her  citizens  to  go  into 
Bering  Sea  with  their  vessels  and  hunters  armed  with  double  barreled 
shot  guns  and  hunt  seals  up  to  the  3-mile  limit,  which  she  now  admits 
should  be  10  miles  as  to  such  hunting.  It  was  quite  as  easy  for  Can- 
ada to  restrain  her  citizens  from  bursting  into  Bering  Sea  as  it  was  to 
enact  her  system  of  very  stringent  laws  to  protect  her  preseive  of  hair 
seals  1,000  miles  from  Canada,  in  the  open  ocean  off  the  coast  of  Green- 
land. If  Canada  had  passed  any  reasonable  laws  for  protecting  these 
interests  of  the  United  States,  even  during  negotiations,  a  serious  dis- 
turbance of  neighborly  feeling  could  have  been  avoided,  and  fearful 
havoc  in  the  seal  herds  passing  her  coasts  would  have  been  prevented. 
The  enactment  of  such  a  law  would  have  enabled  the  United  States 
to  have  controlled  her  own  people  as  to  hunting  seals  in  the  North 
Pacific  without  incurring  the  reproach  from  them  of  denying  to  them 
the  privileges  that  Canadian  subjects  enjoyed  on  the  high  seas,  and  of 
allowing  them  to  reap  all  the  profits  of  the  massacre  of  the  fur-seals. 
The  policy  of  Canada  has  made  it  impossible  for  Congress  to  restrain 
the  people  of  the  United  States  from  participating  in  this  reckless 
destruction,  and  from  this  defiance  of  her  public  policy  and  laws.  Yet, 
in  the  presence  of  this  obvious  legislative  impossibility,  it  seems  equally 


128 


a 


impossible  to  answer  the  thrust  that  is  always  made  at  the  United 
States  in  argument,  in  censure  of  her  conduct,  that  Congress  has  not 
enacted  laws  to  prevent  <;itizens  of  the  United  States  from  pelagic  hunt- 
ing in  tlie  North  Pacific  Ocean.  The  fact  which  no  one  seems  to  deny, 
tliat  citizens  of  the  United  States  took  .shelter  under  the  British  Hag 
and  Canadian  registry  to  evade  the  laws  of  the  United  States  exclud- 
ing them  from  sealing  in  Bering  Sea,  seems  to  liave  been  forgotten. 

Tliat  fact  alone  shows  how  imi)otent  Avould  have  been  tlielawsof  the 
United  States  to  protect  and  preserve  the  fur-seals  against  the  depre- 
dations of  its  own  people  wliiie  sealing  under  the  shelter  of  the  British 
flag.  Canada  controls  the  registry,  licensing,  and  clearance  of  seahng 
vessels  in  her  sea-ports,  as  is  shown  by  lier  statutes  relating  to  tlie 
hair-seal  lislieries.  A  simple  regulation  would  have  saved  the  fur-seals 
from  this  externiinating  raid  that  the  evidence  in  this  case  has  disch)S«'d. 

But  Canadian  subjects  seem  to  have  a  double  allegiance  and  a  two- 
fold protection  xinder  tlieir  colonial  system.  Tlie  Canadian  government 
can  permit  them,  witiiout  control,  to  burst  into  Bering  Sea  and  in-event 
tlie  seals  from  reaciiing  tlie  islands  of  the  United  States,  and  wlien 
such  laids  are  followed  by  arrests  they  can  claim  the  nuperial  power  of 
Great  Britain  to  protect  them. 

Wiiatever  censure,  therefore,  may  be  visited  upon  the  United  States 
for  her  dealings  with  her  own  people,  it  must  be  admitted  that  the 
difhculties  of  the  situation  have  been  caused  by  the  policy  that  her 
neighbor  has  seen  proper  to  ]iursue.  If  such  censures  had  been 
just  they  would  have  been  made  by  Great  Britain  when  negotiations 
in  respect  to  this  treaty  were  pending.  That  Government  did  not 
venture  to  allude  to  the  subject.  It  seems  to  have  been  held  back  as 
a  make  weight  for  the  argument  and  considerations  of  this  case. 

When  tlie  United  States  shall  have  an  opportunity  to  consider  that 
question  in  her  future  discussions  of  such  matters,  should  tlmt  be 
unhappily  necessary,  her  vindication  will  be  found  to  be  complete.  Mr. 
Bayard,  who  first  pointed  out  the  rights  of  the  United  States,  which 
included,  in  substance,  the  five  points  we  have  just  been  discussing, 
and  which  were  advanced  subsequently  with  great  earnestness  by  Mr. 
Blaine,  proposed  to  leave  those  nuitters  out  of  consideration,  and  to 
l)roceed  at  once  to  establish  the  regulation  of  pelagic  hunting  by  des- 
ignating an  area  within  which  a  close  season  should  be  enforced.  And 
afterwards,  when  arrests  were  made  of  the  Canadian  vessels  that  were 
killing  seals  in  Bering  Sea,  Mr.  Bayard  ordered  their  release.    This 


li 


e  United 
has  not 
gic  huiit- 
,  to  deny, 
•itisb  lias 
!S  exclud- 
otten. 
vwsoftlie 
be  depre- 
lie  British 
of  seahng 
ing  to  the 
e  fur-seals 
(Uschised. 
ind  a  two- 
overunient 
lid  prevent 
and  wlien 
al  power  of 

ited  States 
that  tlie 
that  her 
liid  been 
■gotiations 
it  did  not 
d  baek  as 
ase. 

isider  that 
d  that  bo 
»lete.     Mr. 
tes,  which 
liseussing, 
sss  by  Mr. 
)ii,  and  to 
ig  by  des- 
Iccd.    And 
I  that  were 
ise.    Thia 


129 

was  done,  not  because  Mr.  Bayard  had  receded  from  the  attitude  he 
held,  as  was  contended  by  the  British  counsel  iu  oral  argument,  but  for 
tlie  reason  that  a  negotiation  was  pending  for  the  settlement  of  all  the 
controversy,  and  he  did  not  think  that  it  would  promote  good  will  be- 
tween the  nations  to  push  the  claims  of  the  TJnited  States  by  t.ie  exercise 
of  force  while  it  was  negotiating  with  Great  Britain  about  the  validity 
of  those  claims.  After  such  example  of  considerate  aoti(<ti  on  the  part 
of  the  United  States,  it  is  not  doing  Justice  to  either  party  to  claim  that 
the  other  was  treating  with  it  in  a  spirit  oi  generosity  or  of  forbearance. 

Does  anyone  doubt  that  the  United  States  acted,  in  all  this  con- 
troversy, upon  a  firm  belief  in  the  justice  of  its  claims  in  every 
particular?  If  those  claims  were  just,  or  made  in  that  firm  belief,  it  was 
a  matter  of  as  much  concern  to  Great  Britain  as  it  was  to  the  United 
States,  both  in  the  view  of  justice  and  as  to  the  preservation  of  the 
peace,  that  tliey  should  be  fairly  considered  and  settled. 

Great  Britain  has  never,  until  the  scheme  of  her  regulations  were 
presented  to  this  Tribunal,  asserted  that  the  United  States  had  not  a 
special  and  peculiar  interest  in  the  fur-seals  frequenting  Bering  Sea. 
In  the  diplomatic  correspondence  that  Government  conceded  such  a 
peculiar  interest  in  the  United  States,  but  has  at  last  got  its  consent 
to  dwarf  the  concession  to  an  area  that  would  conform  only  to  the  inter- 
ests of  the  Canadian  sealers. 

It  was  these  men  who  comi)elled  Great  Britain  to  interpose  for  their 
protection,  and  when  that  Government  found  that  their  jiractiees  were 
destroying  a  great  and  valuable  element  of  commerce,  they  demanded 
an  investigation  of  the  necessity  for  restraining  pelagic  hunting  by  a 
joint  commission,  and  this  is  the  initial  point  of  tliis  Arbitration. 

Having  touched  on  the  general  (|uestions  or  subjects  now  presented 
for  our  consideration,  and  leaving  to  Mr.  ,^ustice  Harlan  tlie  task  he 
has  chosen  of  making  a  closer  examination  of  the  evidence  bearing  on 
these  questions,  I  will  take  up  the  plans  or  schemes  of  regulations,  so 
far  laid  before  the  Tribunal,  and  endeavor  to  state  my  understanding 
of  what  they  are  and  what  will  be  the  results  if  any  of  them  are 
adopted. 

The  further  remarks  of  Senator  Morgan  on  this  topic  related  to  the 
comparative  merits  of  the  several  schemes  or  projects  of  regulations 
presented  to  the  Tribunal,  and  are  not  here  given. 
11495  M 9 


